JAMES N. WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying one claim of ineffective assistance of counsel but did not err in denying other claims.
Appellant sought post-conviction relief, alleging ineffective assistance of counsel on six grounds. The trial court denied four grounds summarily.…
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PER CURIAM.
This is a final appeal of an order summarily denying appellant’s motion for post-conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, on four out of six grounds originally alleged, as per this court’s mandate in Walker v. State, 701 So. 2d 668 (Fla. 4th DCA 1997).
We find that the trial court did not err in summarily denying post-conviction relief on appellant’s claims of ineffective assistance of trial counsel asserted in grounds two, five and six, and affirm as to the denial of those claims. However, we reverse and remand the trial court’s summarily denial of ground one, in which appellant alleged ineffective assistance of trial counsel for failure to allow him to testify on his own behalf and failure to present a defense of voluntary intoxication and insanity. We find that claim legally and factually sufficient, and that it was not refuted by the portions of the record attached to the State’s response which were incorporated into the trial court’s order of summary denial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Palau v. State, 782 So. 2d 969 (Fla. 4th DCA 2001); Harley v. State, 753 So. 2d 693 (Fla. 4th DCA 2000); Kelly v. State, 712 So. 2d 780 (Fla. 2d DCA 1998).
Generally, an evidentiary hearing is required to conclude that action or inaction was a strategic decision. See Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998). We find that ground one presented claims involving what may have been strategic decisions of trial counsel. Therefore, we reverse the trial court’s summary denial of ground one, and remand for the trial to conduct an evidentiary hearing on that claim. We affirm the circuit court’s order as to appellant’s grounds two, five and six.
GUNTHER, FARMER and GROSS, JJ., concur.
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Pineda v. State, 805 So. 2d 116 (Fla. 4th DCA 2002)…ermination that this was trial strategy on the part of Appellant’s counsel without first conducting an evidentiary hearing. Generally, an evidentiary hearing is required to conclude that action or inaction was a strategic decision. Walker v. State, 792 So. 2d 604, 605 (Fla. 4th DCA 2001); Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998). See also Guisasola v. State, 667 So. 2d 248, 249 (Fla. 1st DCA 1995); Collins v. State, 671 So. 2d 827, 828 (Fla. 2d DCA 1996)(“Matters of trial strategy should not be de…
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Albert Banks v. State, 825 So. 2d 478 (Fla. 4th DCA 2002)…. Indeed, to the extent that the state argued that this suggested a tactical or strategic decision of trial counsel, we acknowledge the settled authority that such claims are not properly resolved without an evidentiary hearing. See Walker v. State, 792 So. 2d 604 (Fla. 4th DCA 2001); Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998). The remaining portions of ground two, and the other grounds asserted in this rule 3.850 motion were legally and factually insufficient. We affirm their summary denial. REV…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998)
- Hill v. Unemployment Appeals Comm'n, 712 So. 2d 780 (Fla. 5th DCA 1998)
- Harley v. State, 753 So. 2d 693 (Fla. 4th DCA 2000)
- Alexander v. State, 701 So. 2d 668 (Fla. 4th DCA 1997)
- Indus. Bldg. NO. 1 v. Nationsbank, 701 So. 2d 668 (Fla. 4th DCA 1997)
- Henriquez v. State, 782 So. 2d 969 (Fla. 3d DCA 2001)
- Evelio A. Palau v. State, 782 So. 2d 969 (Fla. 4th DCA 2001)