         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


SCOTTY B. THOMAS,

              Appellant,

 v.                                                       Case No. 5D17-3796

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed April 27, 2018

3.850 Appeal from the Circuit
Court for Orange County,
Leticia J. Marques, Judge.

Scotty B. Thomas, Okeechobee, pro se.

No Appearance for Appellee.


EDWARDS, J.

       Scotty B. Thomas appeals the summary denial of his rule 3.850 motion for

postconviction relief in which he alleged that his trial counsel was ineffective because he

failed to object to the verdict form used or failed to request a proper verdict form. Although

Appellant’s motion lacked clarity, he made the point that the jury was instructed that it

could find him guilty or not guilty of the compound crime of (1) burglary with a battery, or

the individual crimes of (2) burglary, (3) battery, or (4) trespass. The verdict form gave

the jury the option to decide his guilt regarding the individual crimes and the compound
crime of burglary with a battery. However, the verdict form did not provide the option of

finding Appellant guilty of both trespass and battery.

       Appellant claims that if the jury had been given the option of finding him guilty of

both trespass and battery it would have done so, rather than convicting him of burglary

with a battery. Appellant further argues that he would have received a shorter sentence

under this alternative scenario.

       Appellant’s argument, that given the evidence and jury instructions, the verdict

form should have provided the jury the option to find him guilty of trespass and battery as

an additional alternative finding, may have merit. See Stuckey v. State, 972 So. 2d 918

(Fla. 5th DCA 2007). However, in denying Appellant’s motion, the postconviction court

did not address this issue and we cannot determine from the record provided to us

whether Appellant’s argument has merit. Therefore, we reverse and remand for the

postconviction court to consider and address this issue, and either to attach records

conclusively refuting Appellant’s argument or to conduct an evidentiary hearing.

       REVERSED AND REMANDED WITH INSTRUCTIONS.


ORFINGER and WALLIS, JJ., concur.




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