MICHAEL REID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's claim of ineffective assistance of counsel was facially sufficient and not conclusively refuted by the record, requiring an evidentiary hearing.
The defendant alleged in a rule 3.850 motion that his counsel provided ineffective assistance by failing to advise him of his right to testify and by …
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PER CURIAM.
We conclude that the ineffective assistance of counsel claim in the defendant’s rule 3.850 motion is facially sufficient and that the allegations of the motion are not conclusively refuted by the portions of the transcript attached to the trial court’s order summarily denying the motion. Therefore, we reverse for an evidentiary hearing.
The defendant alleged in the motion that he did not receive effective assistance of counsel because he was not advised of his right to testify at trial and because his lawyer failed to call an alibi witness. The motion also contained sufficient allegations to satisfy the prejudice prong of the Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) test. Thus, in this case, both prongs of the Strickland test were met as required by Oisorio v. State, 676 So. 2d 1368 (Fla.1996).
The portion of the trial transcript attached to the trial court’s order shows that the defendant knew his lawyer had decided not to call him as a witness, but it does not show that the defendant was advised of his right to testify, or that he understood that he could have elected to testify against his lawyer’s advice. Moreover, the trial court did not attach any record that refutes, or even addresses, the defendant’s claim that counsel failed to call an alibi witness.
BOOTH, ALLEN and PADOVANO, JJ., CONCUR.
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Citator
Cited By
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…a. 4th DCA 2000) (remanding the case for the trial court to either hold a hearing or attach further record excerpts because the exhibits incorporated in the trial court’s order did not conclusively refute the IAC alibi witness claim); Reid v. State, 745 So. 2d 1114, 1114-15 (Fla. 1st DCA 1999) (finding that the IAC claim was facially sufficient, but that the trial court failed to attach the portion of the record that “refutes, or even addresses, the defendant’s claim that counsel failed to call an alibi witnes…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)