Johnny A. Marshall v. State ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOHNNY ANTHONY MARSHALL,
Appellant,
v. Case No. 5D16-1081
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed August 19, 2016
3.850 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.
Johnny Anthony Marshall, Milton, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Johnny Anthony Marshall appeals the summary denial of his motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm
as to Grounds B, D, and E. However, because the record does not conclusively refute
Marshall’s claims that counsel was (1) ineffective for failing to object to the introduction of
hearsay by Detective Newton and (2) ineffective for failing to investigate and present an
alibi defense, we reverse the summary denial of Grounds A and C and remand for the
postconviction court to attach portions of the record conclusively refuting those claims or
for an evidentiary hearing.1 See Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)
("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion
unless (1) the motion, files, and records in the case conclusively show that the prisoner
is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing
Maharaj v. State, 684 So. 2d 726 (Fla. 1996))).
AFFIRMED in part, REVERSED in part, and REMANDED.
TORPY, BERGER and EDWARDS, JJ., concur.
1 See generally Hannon v. State, 941 So. 2d 1109, 1138 (Fla. 2006) (noting that
trial strategy cannot normally be determined without an evidentiary hearing, but also
stating that an evidentiary hearing is not necessary when "it is so obvious from the face
of the record that trial counsel’s strategy not to present a [particular defense] is very
clearly a tactical decision well within the discretion of counsel . . .").
2