FREDERICK DAUER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the summary denial of a postconviction relief motion based on ineffective assistance of counsel claims, holding that an evidentiary hearing was required to determine whether defense counsel's actions were tactical.
A trial court must conduct an evidentiary hearing on ineffective assistance of counsel claims rather than summarily denying them based on conclusory state responses that counsel's actions were tactical.
[1] Summary denial of a postconviction motion alleging ineffective assistance of counsel is improper when the state's response merely characterizes counsel's actions as tacti…
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Join FLexlaw to unlock all legal intelligenceFrederick Dauer appealed the summary denial of his postconviction relief motion raising multiple grounds, including ineffective assistance of trial co…
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PER CURIAM.
Frederick Dauer timely appeals the summary denial of his timely filed postconviction relief motion. In his motion, Dauer raises numerous grounds. With the exception of Dauer’s allegations concerning ineffective assistance of counsel, we find that the trial judge correctly denied the motion.
The trial judge made a determination that the motion sufficiently alleged grounds of ineffective assistance of trial counsel and ordered the state attorney to file an answer to the motion. While responsive to the motion, the state attorney’s answer did not provide conclusive information to warrant the denial of the motion without an evidentiary hearing. In fact, the response primarily states that counsel’s actions, or lack of, were tactical. The determination of whether or not defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing. The portions of the records and files attached to the judge’s order do not otherwise refute these particular allegations.
Accordingly, we reverse the trial court’s denial of appellant’s motion with regard to the claims of ineffective assistance of trial counsel and remand the case to the trial court to conduct an evidentiary hearing.
Reversed and remanded.
SCHOONOVER, C.J., and HALL and THREADGILL, JJ., concur.
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Citator
Cited By (22 total)
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Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994)…priate basis for summary denial of post-conviction relief); Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992) (summary denial of ineffective assistance claim based on trial counsel’s “tactical” decisions is generally inappropriate); Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990) (determination whether trial counsel’s actions were tactical is best made by trial judge following an evidentiary hearing); Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987) (trial counsel’s failure to interview or call three alib…
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Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA 1992)…o. 2d 735 (Fla. 2d DCA 1987). While counsel may have had legitimate tactical reasons for not calling this witness during his case in chief, such a conclusion is rarely appropriate for the summary denial of postcon-viction relief. See Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990). Accordingly, further proceedings will be necessary to resolve this one issue. The second issue, although without merit, also warrants comment. Comfort claims to have newly discovered evidence that at least one of his victims ha…
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Robinson v. State, 637 So. 2d 998 (Fla. 1st DCA 1994)…an evidentia-ry hearing. Thomas v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994); Gordon v. State, 608 So. 2d 925 (Fla. 3d DCA 1992); Davis v. State, 608 So. 2d 540 (Fla. 2d DCA 1992); Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992); Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990). Appellant further asserts that the trial court improperly imposed the maximum penalty of 30 years under the habitual offender statute based, in part, on the prosecutor’s statement that appellant committed perjury during trial. T…
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