Johnny A. Marshall v. State

198 So. 3d 1083, 2016 Fla. App. LEXIS 12581, 2016 WL 4417687

Opinion

PER CURIAM.

Johnny Anthony Marshall appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to, Grounds B, D, and E. However, because the record does not conclusively refute Marshall’s claims that counsel was (I)- ineffective for failing to object to the introduction of hearsay by Detective Newton and (2) ineffective for failing to investigate and present an alibi defense, we reverse the summary denial of Grounds A and G and remand for the postconviction court to attach portions of the record conclusively refuting those claims or for an evidentiary hearing. 1 See Freeman v. State, 761 So.2d 1065, 1061 (Fla.2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla.1996))).

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY, BERGER and EDWARDS, JJ., concur.

1 . See generally Hannon v. State, 941 So.2d 1109, 1138 (Fla.2006) (noting that trial strate gy cannot normally be determined without an evidentiary hearing, but also stating that an evidentiary hearing is not necessary when "it is so obvious from the face of the record that trial counsel’s strategy not to present a [particular defense] is very clearly a tactical decision well within the discretion of counsel