JAY N. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court's denial of a postconviction relief motion without an evidentiary hearing was improper when the judge did not attach record portions refuting the claim.
Davis appealed the summary denial of his postconviction relief motion, alleging ineffective assistance of counsel for failure to present expert testim…
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PER CURIAM.
Davis timely appeals the summary denial of his postconviction relief motion. In his motion, Davis raises the ground of ineffective assistance of counsel. Davis alleges his trial counsel was ineffective in failing to present the testimony of an expert witness.
The trial judge determined that counsel’s conduct was a tactical matter and denied Davis’ motion without an evidentiary hearing. The determination of whether defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing. See Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990). The trial judge in his order of denial did not attach portions of the record to refute Davis’ allegation.
Accordingly, we reverse the trial court’s order of denial and remand the case to the trial court. On remand, the trial court may either conduct an evidentiary hearing or again deny the motion and attach portions of the record which conclusively refute Davis’ claim.
Reversed and remanded.
RYDER, A.C.J., and SCHOONOVER and PARKER, JJ., concur.
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Robinson v. State, 637 So. 2d 998 (Fla. 1st DCA 1994)…inding that some action or inaction by defense counsel was tactical is generally inappropriate without 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…
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Morris v. State, 624 So. 2d 864 (Fla. 2d DCA 1993)…tness who concluded Morris did not cause the victim’s death. Black did not, however, represent Morris at trial. The attorney who did failed to call the expert. It is possible such an omission could constitute ineffective assistance. Davis v. State, 608 So. 2d 540 (Fla. 2d DCA1992). In the present case we have some idea why the expert might not have been used. In an affidavit submitted to the circuit court, trial counsel stated that he consulted Black and that Black could no longer recall the expert’s name or…
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Murphy v. State, 638 So. 2d 975 (Fla. 1st DCA 1994)…finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary 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). We therefore reverse for an eviden-tiary hearing on this claim or for attachment of portions of the record demonstrating that…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990)