EMANUEL L. O'NEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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O'Neal challenges the summary denial of his post-conviction motion for ineffective assistance of counsel. The court reverses the summary denial regarding his claim that his attorney failed to present photographs showing he was physically too large to fit through the point of entry window, finding that an evidentiary hearing was required to determine whether the omission was tactical strategy or deficient performance.
The court reversed the summary denial and remanded for an evidentiary hearing on the claim that counsel was ineffective for failing to present evidence of the window size. The court held that an evidentiary hearing is ordinarily necessary to determine whether a defense strategy decision was reasonable tactical strategy or deficient performance, and that the summary denial could not be upheld based solely on the trial record.
[1] A trial court cannot deny a motion for post-conviction relief by finding that defense counsel's decision was tactical or trial strategy without first holding an evidentia…
[2] An evidentiary hearing is generally necessary to resolve whether an act or omission claimed to be deficient performance by counsel was a reasonable tactical strategy.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court cannot deny a motion for post-conviction relief by finding that defense counsel's decision was tactical or trial strategy without first holding an evidentiary hearing.”
Establishes the legal standard that summary denial is improper when the record does not conclusively show counsel's decision was tactical strategy
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Join FLexlaw to unlock all legal intelligenceO'Neal was convicted by jury of burglary and grand theft. The alleged point of entry was a broken window measuring 10 by 34 inches on the defendant's …
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Emanuel L. O’Neal (Defendant) appeals an order summarily denying his rule 8.850 motion for post-conviction relief. We reverse in part.
Following a jury trial, Defendant was found guilty as charged of burglary of a dwelling and grand theft. The point of entry into the burglarized house, which the police officer, who was dispatched to respond to the victim’s burglar alarm, viewed from a neighbor’s backyard, was a broken window on the southwest side of the victim’s house. At trial, defense counsel did not present evidence but argued that the alleged victim, Defendant’s first cousin, had a grudge against him.
Of the ten claims of ineffective assistance which Defendant raised in the instant motion, this court issued an order to show cause limited to the eighth one, in which he claimed that his defense counsel was ineffective for failing to investigate and take photographs of the point of entry to show that Defendant was physically too large to come through the window. He noted that at the time of his arrest, he was 6' 2" in height, weighed 265 pounds, and had a 50-inch waist; he had told counsel many times that there was no way he could have squeezed through the 10" window. He attached as exhibit A to his motion two photographs of the three-part window, with notations indicating the entire window was 87 1/2 by 33 3/4 inches and each pane was 10 by 34 inches. Had counsel presented such photographs to the jury, he maintained, they would have agreed that only a skinny person could have entered the victim’s home through that little window.
The State pointed out in its response below, and in its response filed in this court, that counsel elicited testimony from the victim about the physical characteristics of the window and argued at closing *1073that whoever entered that way would have left blood or hair samples behind, but none were in evidence. It attached a trial transcript which reflects that the victim testified he was sure Defendant got in through a window, the kind with a crank that rolls in and out, with three panels that roll in and out together. One of those three was broken; the glass was shattered and the framework “bent all up.” Defense counsel argued that it was not reasonable for someone, within three to five minutes, to break a window, climb through, and not to leave any blood, hair, clothing, or DNA.
This kind of argument was not the same as arguing, with evidence, that the Defendant could not fit through the space in question. As overwhelming as the State’s evidence appears to be, if the jury had accepted Defendant’s position that the victim had a grudge against him, the evidence also could have been explained as a set-up by the alleged victim. Even the tape-recorded voice messages coming from Defendant’s phone were incriminating only when the victim explained what he heard Defendant saying in them; on the trial transcript, the messages were entirely inaudible.
The State acknowledges that ordinarily an evidentiary hearing is necessary to resolve the question of whether an act or omission claimed to be deficient was a reasonable tactical strategy. E.g., Button v. State, 941 So.2d 531, 533 (Fla. 4th DCA 2006) (“A trial court cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing.”). Nevertheless, the State argues that failure to present evidence of the size of the window was part of defense counsel’s strategy, because he used it to attack the State’s lack of evidence, and asserts that the fact that it was defense counsel trial strategy is evident from the face of the record. We disagree.
Accordingly, the summary denial is reversed in part and remanded for an evi-dentiary hearing, as to the eighth ground for relief. With regard to the remaining claims, we affirm without discussion.
Affirmed in part, Reversed in part, and Remanded.
GROSS, C.J., WARNER and POLEN, JJ., concur.
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Smyth v. State, 84 So. 3d 388 (Fla. 4th DCA 2012)…nt. 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 conclusivel…
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Thomas v. State, 121 So. 3d 71 (Fla. 3d DCA 2013)…e, 48 So. 3d 971 (Fla. 3d DCA 2010) (holding that a trial court cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing); O’Neal v. State, 54 So. 3d 1071 (Fla. 4th DCA 2011) (disagreeing with the state’s argument that defense counsel trial strategy was evident from the face of the record without necessitating an evidentiary hearing to resolve the question of whether the omission alleged to be deficie…
Authorities Cited
- Button v. State, 941 So. 2d 531 (Fla. 4th DCA 2006)