Opinion
No. 93-673.
March 30, 1994.
Appeal from the Circuit Court, Duval County, Alban E. Brooke, J.
Eddie L. Rosemond, pro se.
Robert A. Butterworth, Atty. Gen., and Joe S. Garwood, Asst. Atty. Gen., Tallahassee, for appellee.
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.
I concur in the majority's finding that the first ground raised in the motion for postconviction 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.