benefit of an evidentiary hearing in Florida

2018Given that the affidavit was not “inherently incredible” nor “obviously immaterial,” see Davis v. State, 26 So. 3d 519, 526 (Fla. 2009), we conclude that the trial court improperly made these determinations without the benefit of an evidentiary hearing.

2018See Davis v. State , 26 So.3d 519 , 526 (Fla. 2009).

2023See Erlsten v. State, 842 So. 2d 967 , 968–69 (Fla. 4th DCA 2003) (“Counsel may have had strategic reasons for not seeking to replace the sleeping juror during the trial, but a trial court’s finding that a decision was tactical usually is inappropriate without an evidentiary hearing.”); Guisasola v. State, 667 So. 2d 248, 249 (Fla. 1st DCA 1995) (“[A] trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.”); Evans v. State, 737 So. 2d 1167, 1168 (Fla. 2d 2 DCA 1999) (“A trial court’s finding that defense act

2017See Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004); see also Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000) ("[S]ummary denial is rarely appropriate if the trial court needs to assess the credibility of the new testimony.”); Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999) (“A trial court’s finding that defense action or inaction is the result of trial strategy will generally be disapproved if the decision is made without the benefit of an evidentiary hearing.” (citing Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995))).

2023See Erlsten v. State, 842 So. 2d 967 , 968–69 (Fla. 4th DCA 2003) (“Counsel may have had strategic reasons for not seeking to replace the sleeping juror during the trial, but a trial court’s finding that a decision was tactical usually is inappropriate without an evidentiary hearing.”); Guisasola v. State, 667 So. 2d 248, 249 (Fla. 1st DCA 1995) (“[A] trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.”); Evans v. State, 737 So. 2d 1167, 1168 (Fla. 2d 2 DCA 1999) (“A trial court’s finding that defense act

2017See Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004); see also Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000) ("[S]ummary denial is rarely appropriate if the trial court needs to assess the credibility of the new testimony.”); Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999) (“A trial court’s finding that defense action or inaction is the result of trial strategy will generally be disapproved if the decision is made without the benefit of an evidentiary hearing.” (citing Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995))).

2024Because the trial court could not properly make such a factual determination without affording [the defendant] the benefit of an evidentiary hearing, we reverse.”); Borland v. State, 848 So. 2d 1288, 1290 (Fla. 2d DCA 2003) (where the defendant’s rule 3.853 motion alleged evidence still existed for DNA testing, and the state filed an unsworn response alleging such evidence did not exist, a factual dispute existed which had to be resolved by an evidentiary hearing). 3 Applying de novo review, we agree with the state’s confession of error.

2003This case is very similar to another case recently decided by this court, Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003).

2024See Tisdale v. State, 282 So. 3d 998 , 1000 (Fla. 3d DCA 2019) (“The standard of review of a summary denial of a rule 3.850 or 3.853 motion is de novo.”) (citation and internal brackets omitted); see also Warren v. State, 884 So. 2d 1074, 1074 (Fla. 2d DCA 2004) (“The documents provided by the State to show … the evidence listed in [the rule 3.853 motion] no longer exists create a factual dispute as to whether the evidence still exists for testing.

2024See New England Tank Indus. of N.H., Inc. v. United States, 865 F.2d 243, 245 (Fed.

2023See Erlsten v. State, 842 So. 2d 967 , 968–69 (Fla. 4th DCA 2003) (“Counsel may have had strategic reasons for not seeking to replace the sleeping juror during the trial, but a trial court’s finding that a decision was tactical usually is inappropriate without an evidentiary hearing.”); Guisasola v. State, 667 So. 2d 248, 249 (Fla. 1st DCA 1995) (“[A] trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.”); Evans v. State, 737 So. 2d 1167, 1168 (Fla. 2d 2 DCA 1999) (“A trial court’s finding that defense act

2017See Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004); see also Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000) ("[S]ummary denial is rarely appropriate if the trial court needs to assess the credibility of the new testimony.”); Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999) (“A trial court’s finding that defense action or inaction is the result of trial strategy will generally be disapproved if the decision is made without the benefit of an evidentiary hearing.” (citing Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995))).

2017See Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004); see also Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000) ("[S]ummary denial is rarely appropriate if the trial court needs to assess the credibility of the new testimony.”); Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999) (“A trial court’s finding that defense action or inaction is the result of trial strategy will generally be disapproved if the decision is made without the benefit of an evidentiary hearing.” (citing Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995))).

2008San Martin v. State, 717 So.2d 462, 465 (Fla.1998) (footnote omitted). [14] While I realize the facts of the crime were different, my point is that without the benefit of an evidentiary hearing, we cannot rule out the possibility that the jury in this case would have recommended a life sentence if the expert testimony had been properly presented.

1995See Gardner v. State, 480 So.2d 91 (Fla. 1985); Price v. State, 487 So.2d 34 (Fla. 1st DCA 1986); Reed v. State, 611 So.2d 48 (Fla. 1st DCA 1992).