Marino v. State

698 So. 2d 389, 1997 Fla. App. LEXIS 9686, 1997 WL 530343

Opinion

PER CURIAM.

The appellant filed a motion for post-conviction relief setting forth numerous claims of ineffective counsel for failure to call witnesses or putting on any case on behalf of the defendant. The state filed its response, and the trial court summarily denied the motion, adopting the state’s response. We cannot conclude that the state’s response conclusively refutes the appellant’s motion with respect to counsel’s ineffectiveness in advising appellant not to testify in his own defense, based upon defense counsel’s alleged erroneous advice as to the strength of the state’s case and his chances of reversal on appeal. We also find the state’s response does not conclusively refute appellant’s affidavit with respect to the failure to call witnesses. We therefore remand for an eviden-tiary hearing on these issues.

WARNER, KLEIN and GROSS, JJ., concur.