Comacho v. State (813 So. 2d 198, 2002)

COVINGTON, Judge.

Danni Comacho appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Comacho was charged with trafficking in twenty-eight grams or more of heroin under section 893.135(l)(c), Florida Statutes (Supp.1996). At trial, conflicting evidence was presented regarding the amount of heroin that Co-macho possessed. In accordance with State v. Weller, 590 So.2d 923 (Fla.1991), and Standard Jury Instructions in Criminal Cases (97-1), 697 So.2d 84, 89 (Fla.1997), the trial court should have instructed the jury on trafficking in lesser amounts of heroin, but the trial court believed that Comacho was not entitled to this instruction.

Comacho alleges that his trial counsel was ineffective for not objecting to the trial court’s failure to instruct the jury on trafficking in amounts less than twenty-eight grams. Comacho has made a facially sufficient claim of ineffective assistance of counsel. We reverse and remand on this claim and affirm the remaining claims without comment. On remand, the trial court must either conduct an evidentiary hearing or attach record documents that conclusively refute Comacho’s claim.

Affirmed in part, reversed in part, and remanded.

STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, Concur.