JERRY THOMAS

v.

STATE OF FLORIDA

VILLANTI, Judge. Jerry Thomas appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, contending that the postconviction court erred when it denied relief on claims two and four and the second subclaim of claim seven and in failing to rule on the second subclaim of claim eight. Because the record supports the denial of the claims actually ruled upon by the

- 2 - postconviction court, we affirm the denial of those claims without further comment.

However, the record supports Thomas's argument that the postconviction court failed to rule on the second subclaim raised in claim eight of his motion.

Therefore, we reverse the order to the extent that it summarily denied claim eight and remand for the postconviction court to rule on the subclaim it overlooked. In claim eight of his motion, Thomas alleged that his trial counsel provided ineffective assistance by failing to object to testimony from two police deputies that they knew Thomas and Thomas's voice from prior drug deals. He also alleged that trial counsel provided ineffective assistance by failing to object to the deputies providing "general criminal behavior testimony based upon a law enforcement officer's observations and experience in the investigation of other cases" and their subsequent testimony that Thomas's behavior was consistent with those general criminal behaviors.

In summarily denying this claim as conclusively refuted by the record, the postconviction court stated: In Ground Eight, Defendant alleges that his trial counsel was ineffective for "failure to object to impermissible criminal behavior testimony (leading) to the improper and unjust conviction of the defendant. In the instant case, no CCSO agent actually or visually witnessed any drug transaction between the defendant and the confidential informant.

Additionally, no CCSO agent or officer actually or visually witnessed the defendant present at the sale location. The entire State's case rested with testimony about known criminal behaviors and prior dealings with the defendant; such that, Det. Ogden and/or Detective Griffin testified that they knew the voice on the other end of a phone call, which was on a speaker phone, belonged to (Defendant) because of previous drug dealings with the defendant." (Defendant's motion, pp. 8-9).

The State asserts, and the Court agrees, that this claim is conclusively refuted by the record. The trial transcript shows that neither Detective Ogden nor Detective Griffin ever mentioned knowing the Defendant's voice from

- 3 - any previous drug dealings. Detective Ogden's testimony was that he recognized the Defendant's voice from having previously met Defendant and having had the opportunity to hear him speak. (Trial transcript, pp. 121-122). Detective Griffin's testimony was that the confidential informant in the recording was speaking "to the person that was selling her the narcotics." (Trial transcript, p. 160). Ground Eight, therefore, is conclusively refuted by the record and will be DENIED. The postconviction court attached excerpts of the deputies' testimony relating to the voice recognition issue.

However, the postconviction court never addressed Thomas's claim that the trial court impermissibly admitted evidence of "general criminal behavior," and it did not attach any portions of the transcript relating to this issue. This court and others have held that it is an abuse of discretion to admit testimony that is based solely on generalized patterns of criminal behavior. See, e.g., Damen v. State, 793 So. 2d 106, 108 (Fla. 2d DCA 2001); Lewis v. State, 754 So. 2d 897, 902 (Fla. 1st DCA 2000).

However, when a police witness is properly qualified as an expert and can provide opinion testimony rather than factual testimony on the issue of general criminal behavior, such evidence may be admissible. See Damen, 793 So. 2d at 108 (citing Scarlett v. State, 704 So. 2d 615, 616 (Fla. 4th DCA 1997)).

In light of this case law, the question of whether the general criminal behavior evidence offered by the State in this case was proper is a factual one that depends on the questions asked by the State and whether the police witnesses were qualified as experts.

However because the postconviction court did not rule on this subclaim, the record does not include the portions of the transcript that would be relevant to a determination of whether the evidence was properly offered and so whether trial counsel was ineffective for failing to object to its introduction. And while

- 4 - the State contends in its brief that the deputies testified to their knowledge and training in common narcotics practices so as to make the evidence admissible, no such testimony is present in the limited trial transcript excerpts attached to the postconviction court's order or contained in the record on appeal.

Therefore, because the record shows that the postconviction court did not rule on the second subclaim of claim eight of Thomas's motion and because the transcript excerpts attached to the postconviction court's order do not address, much less conclusively refute, this claim, we reverse on this single issue and remand for the postconviction court to address this claim. On remand, the postconviction court may again summarily deny this claim if it can attach portions of the transcript that support its decision. Otherwise, Thomas is entitled to an evidentiary hearing on this claim.

Affirmed in part, reversed in part, and remanded for further proceedings. BLACK and ATKINSON, JJ., Concur.