Smyth v. State

District Court of Appeal of Florida

Smyth v. State

84 So. 3d 388, 2012 WL 933007, 2012 Fla. App. LEXIS 4468

CourtDistrict Court of Appeal of Florida

DecidedMarch 21, 2012

DocketNo. 4D10-2849

StatusPublished

Cited by1 cases

This text of 84 So. 3d 388 (Smyth v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smyth v. State, 84 So. 3d 388, 2012 WL 933007, 2012 Fla. App. LEXIS 4468 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

Douglas Smyth appeals an order summarily denying his multi-issue Rule 3.850 motion for post-conviction relief. We affirm the trial court’s denial of all of the claims except for one. In claim four, Smyth alleges that counsel failed to demand analysis of hair found in the victim’s underwear and such testing would have furthered Smyth’s claim of innocence as advanced at trial. This point of the motion was not specifically addressed either by the response filed in the trial court or the order denying relief.

Responding to this court, the state contends that the decision not to test the hairs in this case was strategic and allowed counsel to argue reasonable doubt based upon the state’s inadequate investigation. Thus, on the face of the record, the strategy is evident. This court has previously rejected a comparable argument that defense strategy was evident on the face of the record and remanded for an evidentia-ry hearing as to whether the claim represents a reasonable tactical decision. See O’Neal v. State, 54 So.3d 1071 (Fla. 4th DCA 2011).

Accordingly, we reverse only the portion of the order discussed above, and remand this case to the trial court for an evidentia-ry hearing as to that claim or for the attachment of those portions of the record that conclusively refute the claim. We affirm as to the remaining claims.

MAY, C.J., WARNER and CHELIN, JJ., concur.

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PER CURIAM.

Douglas Smyth appeals an order summarily denying his multi-issue Rule 3.850 motion for post-conviction relief. We affirm the trial court’s denial of all of the claims except for one. In claim four, Smyth alleges that counsel failed to demand analysis of hair found in the victim’s underwear and such testing would have furthered Smyth’s claim of innocence as advanced at trial. This point of the motion was not specifically addressed either by the response filed in the trial court or the order denying relief.

Responding to this court, the state contends that the decision not to test the hairs in this case was strategic and allowed counsel to argue reasonable doubt based upon the state’s inadequate investigation. Thus, on the face of the record, the strategy is evident. This court has previously rejected a comparable argument that defense strategy was evident on the face of the record and remanded for an evidentia-ry hearing as to whether the claim represents a reasonable tactical decision. See O’Neal v. State, 54 So.3d 1071 (Fla. 4th DCA 2011).

Accordingly, we reverse only the portion of the order discussed above, and remand this case to the trial court for an evidentia-ry hearing as to that claim or for the attachment of those portions of the record that conclusively refute the claim. We affirm as to the remaining claims.

MAY, C.J., WARNER and CHELIN, JJ., concur.

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Bluebook (online)

84 So. 3d 388, 2012 WL 933007, 2012 Fla. App. LEXIS 4468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smyth-v-state-fladistctapp-2012.

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