EDDIE ROSEMOND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's summary denial of ineffective assistance of counsel claims was erroneous because it failed to articulate a tactical basis or attach supporting record; remanded for evidentiary hearing or proper denial with record attachment.
Summary denial of ineffective assistance of counsel claims must be accompanied by explicit findings that counsel's actions were tactical and portions of the record supporting such findings, or the denial must be reversed and remanded for an evidentiary hearing.
[1] Summary denial of ineffective assistance of counsel claims based on tactical decisions requires the trial court to articulate the tactical basis and attach record portion…
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Join FLexlaw to unlock all legal intelligence“the determination of whether defense counsel's actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing”
Court explaining why summary denial without evidentiary hearing was improper for tactical decision claims
Rosemond appealed the summary denial of his motion for postconviction relief raising four ineffective assistance of counsel claims, which the trial co…
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PER CURIAM.
Rosemond challenges the summary denial of his motion for postconviction relief. We conclude that the trial court’s summary denial of the four ineffective assistance of counsel claims on the basis of their involving tactical decisions was erroneous. The order is deficient because it recites no basis upon which the trial court determined that the actions of trial counsel were tactical and because it does not have attached those portions of the record that support such a finding. Fla.R.Crim.Pro. 3.850(d); Williams v. State, 601 So. 2d 596, 598-99 (Fla. 1st DCA 1992); see Boutwell v. State, 563 So. 2d 798, 799 (Fla. 1st DCA 1990). Moreover, the determination of whether defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing. Davis v. State, 608 So. 2d 540 (Fla. 2d DCA 1992); Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992). Accordingly, we reverse the summary denial of the ineffective assistance of counsel claims and remand with directions that the trial court either hold an evidentiary hearing or again deny the motion and attach portions of the record conclusively showing that Rosemond would be entitled to no relief on those claims. Davis, 608 So. 2d at 540. We affirm the trial court’s summary denial of Rosemond’s remaining claim because it could or should have been raised on direct appeal. See Chandler v. Dugger, 634 So. 2d 1066 (Fla.1994).
AFFIRMED in part, REVERSED in part, and REMANDED.
ALLEN and WEBSTER, JJ., concur. BOOTH, J., concurs and dissents with written opinion.
BOOTH, Judge,
concurring and dissenting:
I concur in the majority’s finding that the first ground raised in the motion for postcon-viction relief is facially insufficient because it should have been raised on direct appeal. See Wells v. State, 598 So. 2d 259 (Fla. 1st DCA 1992).
I cannot agree with the majority, however, that the trial court erred in denying the motion for postconviction relief as to the four ineffective assistance claims. My review of the motion convinces me that appellant has failed to allege facts which, if true, create a reasonable probability that but for counsel’s unprofessional errors, the disposition of appellant’s criminal case would have been different. See Davis v. State, 627 So. 2d 112 (Fla. 1st DCA 1993); Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991).
Appellant’s principal complaint appears to be that counsel failed to object to the introduction of certain evidence at trial. It is clear from the face of appellant’s own motion, however, that the trial court had previously denied a motion to suppress such evidence. Although counsel’s failure to object at trial may have prevented the issue from being preserved for appellate review, the motion does not allege facts demonstrating that this court would have likely reversed as to a decision to admit the evidence.
Consequently, the trial court should not have been concerned, and the majority should not be concerned, with whether counsel’s decisions in this regard could be characterized as tactical.
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Bart A. Greenway v. State, 823 So. 2d 206 (Fla. 1st DCA 2002)…ance may well have been tactical, such a finding should normally be made only after an evidentiary hearing. See Jackson v. State, 789 So. 2d 1218, 1220 (Fla. 1st DCA 2001); Hester v. State, 732 So. 2d 331, 332 (Fla. 1st DCA 1998); Rosemond v. State, 634 So. 2d 259, 260 (Fla. 1st DCA 1994). We therefore reverse the order insofar as it denied the two specific claims discussed above and remand for the trial court either to attach portions of the record conclusively refuting these claims or to hold an evidentiary…
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Lydell Coring Rogers v. State, 652 So. 2d 972 (Fla. 1st DCA 1995)…itled to no relief on the issue of trial counsel’s alleged failure to perform an adequate investigation and to call at trial a purported alibi witness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rosemond v. State, 634 So. 2d 259 (Fla. 1st DCA 1994) (absent attachments conclusively refuting allegation of ineffective counsel, order was deficient for failing to recite any basis for determination that counsel’s acts were “tactical”). Because ineffective assistance of counsel is…
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State v. Williams, 127 So. 3d 890 (Fla. 1st DCA 2013)…So. 2d 1218, 1220 (Fla. 1st DCA 2001) (“As this court has explained, ‘the determination of whether defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evi-dentiary hearing.’ ” (quoting Rosemond v. State, 634 So. 2d 259, 260 (Fla. 1st DCA 1994))). See also Jacobs v. State, 880 So. 2d 548, 551 (Fla.2004). The state — like the defendant, when the shoe is on the other foot — is entitled to an evidentiary hearing on whether trial counsel’s performance was constitutiona…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chandler v. Dugger, 634 So. 2d 1066 (Fla. 1994)
- Williams v. State, 601 So. 2d 596 (Fla. 1st DCA 1992)
- Wells v. State, 598 So. 2d 259 (Fla. 1st DCA 1992)
- Boutwell v. State, 563 So. 2d 798 (Fla. 1st DCA 1990)
- Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992)
- Davis v. State, 627 So. 2d 112 (Fla. 1st DCA 1993)
- Davis v. State, 608 So. 2d 540 (Fla. 2d DCA 1992)
- Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991)