FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Alan S. Apte,
Jerome Brown, Jr., Bonifay, pro se.
Jo Bondi, Attorney General, Tallahassee, and Pamela J.
Koller, Assistant Attorney General, Daytona Beach, for
Jerome Brown, Jr. (the defendant) appeals the trial
court's order summarily denying his motion filed pursuant
to rule 3.850 of the Florida Rules of Criminal Procedure. We
reverse and remand for reconsideration of the defendant's
first and fifth grounds for relief.
defendant timely filed a rule 3.850 motion. The motion raised
five grounds for relief, arguing, among other things, that
trial counsel had rendered ineffective assistance of counsel
by failing to call material witnesses, Melvin Beasley and
Toby Durham (ground one), and by failing to object to a jury
instruction on the lesser-included offense of attempted
second-degree murder which did not include an independent
recitation of excusable and justifiable homicide (ground
five). The trial court entered an order summarily denying all
five grounds for relief.
defendant challenges this order, claiming that the trial
court erred in summarily denying ground one and failing to
rule on ground five. We agree.
of ineffective assistance of counsel require satisfying the
two-part test set forth in Strickland v. Washington,
466 U.S. 668, 687 (1984). First, the defendant must show that
trial counsel's performance was deficient, which requires
showing that counsel made errors so serious that counsel was
not functioning as the "counsel" guaranteed by the
Sixth Amendment. Id. at 694. Second, the defendant
must show that counsel's deficient performance prejudiced
his defense, which requires showing that counsel's errors
were so serious as to create "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Id. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
the proper framework for addressiong Strickland
claims raised in post-conviction motions, the Florida Supreme
[U]nder rule 3.850, a movant is entitled to an evidentiary
hearing unless the motion, files, and record conclusively
show that the movant is not entitled to relief. Fla. R. Crim.
P. 3.850(d); e.g. Provenzano v. Duggar, 561 So.2d
541, 543 (Fla. 1990); Harich v. State, 484 So.2d
1239, 1240 (Fla. 1986); O'Callaghan v. State,
461 So.2d 1354, 1355 (Fla. 1984). To support summary denial
without a hearing, a trial court must either state its
rationale in its decision or attach those specific parts of
the record that refute each claim presented in the motion.
Hoffman v. State, 571 So.2d 449, 450 (Fla. 1990).
Anderson v. State, 627 So.2d 1170, 1171 (Fla. 1993).
ground one, the defendant alleged in his motion that he
informed his trial counsel of Beasley before trial and that
Beasley was available to testify during trial. The motion
further alleged that Beasley would have testified that he was
with the defendant when the crime was committed and that he
left with the defendant before the crime took place. The
motion alleged that trial counsel never contacted or
trial court summarily denied this claim for relief,
concluding that the record established a reasonable
explanation for counsel's failure to call Beasley as a
witness because the transcript of a
Nelson hearing, which was contained in the
record, demonstrated that defense counsel acted within the
broad range of competent performance. The transcript of that
hearing demonstrated that trial counsel stated that she did
not know who Beasley was and that she had no notes on him.
Counsel also stated that she had directed her investigator to
speak with every witness supplied to her. The defendant
argues that this evidence was insufficient to support summary