ROBERT CHAMBERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying claims of ineffective assistance of counsel regarding failure to call an alibi witness and introduce exculpatory evidence.
Chambers appealed the summary denial of his rule 3.850 motion, alleging his counsel was ineffective for failing to call an alibi witness and failing t…
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PER CURIAM.
Chambers timely appeals the summary denial of his rule 3.850 motion. Chambers raises three claims to support his motion. We reverse for further proceedings with respect to the claims of ineffective assistance and otherwise affirm the order of denial.
Chambers claims his counsel was ineffective in failing to call an alibi witness. Chambers alleges the witness would have testified that he was in another part of the state on the date the crime occurred and he could not have returned at the time the crime was committed. The failure to call an alibi witness can constitute ineffective assistance. Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA1992). Accordingly, we reverse and remand for further proceedings with respect to this claim.
Chambers also claims counsel was ineffective in failing to introduce into evidence a tape recording which would have demonstrated that Chambers was not involved in the crime. While counsel’s failure to introduce the tape may have been a tactical decision, we cannot make that determination from the record before us. We therefore reverse and remand for further proceedings with respect to this claim. Reversed, in part, and remanded. On remand, the trial court may again deny the relief requested and attach to its order of denial that portion of the record refuting the claims of ineffective assistance or conduct an evidentiary hearing. The order of denial is otherwise affirmed.
SCHOONOVER, A.C.J., and THREADGILL and PATTERSON, JJ., concur.
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Martin v. State, 205 So. 3d 811 (Fla. 2d DCA 2016)…t an evi-dentiary hearing. Hamilton v. State, 915 So. 2d 1228, 1231 (Fla. 2d DCA 2005) (“[T]o conclude that an action or inaction taken by a trial attorney was a strategic decision generally requires an evidentiary hearing.”); see Chambers v. State, 613 So. 2d 118, 118 (Fla. 2d DCA 1993) (reversing and remanding for an evidentiary hearing to determine if counsel’s failure to introduce an allegedly exculpatory tape recording was a reasonable tactical decision). Here, Mr. Martin alleges that counsel failed to…
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Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994)…[de] clear that the conduct of Downs’ counsel was reasonable under the circumstances.” Id. at 1109. Without an adequate record, we are in no position to make such a fact-based determination, as a plethora of recent eases attests. Chambers 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 D…
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Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995)…effective assistance of counsel, “without an adequate record, we are in no position to make such a fact-based determination as a plethora of recent cases attests.” Williams v. State, 642 So. 2d 67, 69 (Fla. 1st DCA 1994); see also Chambers v. State, 613 So. 2d 118 (Fla. 2d DCA 1993). Accordingly the trial court’s summary denial of defendant’s motion for post-conviction relief is reversed and remanded for either an evidentiary hearing or for attachment of record excerpts which are sufficient to conclusively d…
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- Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA 1992)