Phillips v. State

687 So. 2d 915, 1997 Fla. App. LEXIS 363, 1997 WL 35004

• Court: District Court of Appeal of Florida
• Decided: January 29, 1997
• Docket: No. 96-1327
• Status: Published

Opinion

On Motion for Rehearing

PER CURIAM.

The court grants appellant’s motion for rehearing, withdraws its opinion dated August 14, 1996, and substitutes the following opinion:

Roy Phillips appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The motion was summarily denied. Under this Court’s standard of review, “Unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evi-dentiary hearing.” Fla. R.App. P. 9.140(g).

Defendant-appellant Phillips contends that his trial counsel was ineffective for failing to call certain witnesses at trial. In the motion, defendant has identified the witnesses and the substance of their testimony. Defendant also contends that his trial counsel was ineffective for failing to introduce the tape recording of defendant’s telephone call to the 911 emergency line at the time of the shooting which was the subject of the criminal charges.

After considering the record now before us and the submissions of the parties, we are unable to say that the record conclusively shows that the appellant is entitled to no relief. Consequently, the order under review is reversed and the cause remanded for an evidentiary hearing.

Reversed and remanded.