HAROLD GORDON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that allegations of ineffective assistance of counsel require an evidentiary hearing, even if the trial court deems the actions tactical.
Harold Gordon, convicted of sexual battery and lewd acts, appealed the denial of his motion for post-conviction relief, alleging ineffective assistanc…
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PER CURIAM.
Harold Gordon appeals the denial of his motion for post-conviction relief. We reverse.
Gordon, who was found guilty of three counts of sexual battery on a child under the age of twelve and one count of lewd and lascivious act in the presence of a minor, contends that his trial attorney provided ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gordon pointed to a number of actions and omissions by his counsel, occurring both pretrial and during trial, and argued that but for his counsel’s unprofessional errors, the result of the proceeding would have been different. See Downs v. State, 453 So. 2d 1102 (Fla.1984). The trial court denied outright Gordon’s motion. The court observed that the claimed actions and omissions were tactical decisions made by Gordon’s counsel.
As stated in Harley v. State, 594 So. 2d 352, 353 (Fla. 2d DCA 1992), while defense counsel is certainly entitled to broad discretion regarding trial strategy, when the trial court is confronted with the claim of ineffective assistance of counsel, a finding that some action or inaction by defense counsel was tactical is generally inappropriate, without an evidentiary hearing. Instead, counsel should be heard from, and, if necessary, cross-examined as to whether a decision truly was “tactical.” See also Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990). We conclude that the instant allegations of ineffective assistance necessitated such an evidentiary hearing. See Overton v. State, 531 So. 2d 1382 (Fla. 1st DCA 1988).
Accordingly, we reverse the order denying defendant’s motion for post-conviction relief and remand for further proceedings as to the errors claimed.
Reversed and remanded.
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Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994)…v. State, 613 So. 2d 118 (Fla. 2d DCA 1993) (failing to call alibi witnesses can be ineffective assistance of counsel; trial court must attach record conclusively demonstrating no entitlement to relief or hold evidentiary hearing); Gordon v. State, 608 So. 2d 925 (Fla. 3d DCA 1992) (finding defense counsel’s action to be tactical is generally inappropriate, without an eviden-tiary hearing; counsel should be heard from as to whether decision truly was “tactical”); Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA…
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Robinson v. State, 637 So. 2d 998 (Fla. 1st DCA 1994)…h a claim of ineffective assistance of counsel, a finding 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 maxi…
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Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995)…ssistance of counsel, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without the benefit of an evidentia-ry hearing. See Davis; Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994); Gordon v. State, 608 So. 2d 925 (Fla. 3d DCA 1992). The determination that defense counsel’s actions not to raise an alibi defense or call alibi witnesses were tactical decisions is best made after an evidentiary hearing unless the record conclusively refutes the allegations. See…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Downs v. State, 453 So. 2d 1102 (Fla. 1984)
- Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990)
- Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992)
- Overton v. State, 531 So. 2d 1382 (Fla. 1st DCA 1988)