RAYMOND N. TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DELL, Judge.
Appellant seeks reversal of an order denying his motion for post conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. He claims ineffective assistance of counsel and alleges that his counsel failed to call a key alibi witness named L.C. Bryant. Appellant’s trial witness list did not contain the name of L.C. Bryant. However it did list a witness named L.C. Ruffin. The trial court failed to resolve the discrepancy regarding the identity (or identities) of L.C. Ruffin and L.C. Bryant.
Appellee has submitted an affidavit from appellant’s defense counsel which purports to answer the question concerning the identity of these witnesses. However it is not the province of this court to take evidence and to make findings of fact. The trial judge should have conducted an evidentiary hearing to resolve the discrepancy between these witnesses and the relevance, if any, to appellant’s claim of ineffective assistance of counsel.
Accordingly, we reverse the trial court’s order denying appellant’s motion for post conviction relief and remand this matter for further proceedings.
REVERSED and REMANDED.
DOWNEY and ANSTEAD, JJ., concur.
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Davis v. State, 559 So. 2d 630 (Fla. 4th DCA 1990)…was legally sufficient. Denial of a motion alleging ineffective assistance of counsel is proper where the trial court attaches portions of the record refuting the defendant’s allegations. Squires v. State, 513 So. 2d 138 (Fla.1987); Taylor v. State, 505 So. 2d 28 (Fla. 4th DCA 1987). Because the trial court failed to include those attachments, we reversed and remanded with directions to either hold an evidentiary hearing or attach to the order those portions of the record which refuted appellant’s claims.…
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Davis v. State, 540 So. 2d 943 (Fla. 4th DCA 1989)…as legally sufficient, we reverse and remand with directions either to attach to the order those portions of the record which refute appellant’s claims or to hold an evi-dentiary hearing. Squires v. State, 513 So. 2d 138 (Fla.1987); Taylor v. State, 505 So. 2d 28 (Fla. 4th DCA 1987). REVERSED AND REMANDED. HERSEY, C.J., and GLICKSTEIN and WALDEN, JJ., concur.…
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Walker v. State, 586 So. 2d 1157 (Fla. 2d DCA 1991)…district courts of this state. Thompson v. State, 503 So. 2d 1354 (Fla. 2d DCA 1987); Junco v. State, 510 So. 2d 909 (Fla. 3d DCA), review denied, 518 So. 2d 1276 (Fla.1987); Wiley v. State, 508 So. 2d 1336 (Fla. 1st DCA 1987); Printempts v. State, 505 So. 2d 28 (Fla. 4th DCA 1987). While we share some of the sentiments expressed by Judge Nimmons in his concurrence to Wiley, we are bound to apply the supreme court’s per se rule. We note that this rule of per se reversible error is apparently not essential…