Banks v. State

825 So. 2d 478 (2002)

Albert BANKS, Appellant,
v.
STATE of Florida, Appellee.

No. 4D01-2776.

District Court of Appeal of Florida, Fourth District.

August 28, 2002.

Albert Banks, South Bay, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Albert Banks appeals the trial court order summarily denying his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand on ground two of that motion, and affirm the summary denial of relief on the remaining grounds.

Appellant was convicted of attempted first degree murder, three counts of attempted second degree murder and shooting into a building. He appealed to this court, which issued an en banc affirmance in Banks v. State, 691 So. 2d 490 (Fla. 4th DCA), rev. denied, 699 So. 2d 1371 (1997). Appellant filed this motion for post conviction relief raising six grounds. Ground two alleged ineffective assistance of trial counsel for refusing to allow him to testify in his own defense. An alibi defense was presented.

We conclude that this claim was legally and factually sufficient under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Indeed, to the extent that the state argued that this suggested a tactical or strategic decision of trial counsel, we acknowledge the settled authority that such claims are not properly resolved without an evidentiary hearing. See Walker v. State, 792 So. 2d 604 (Fla. 4th DCA 2001); Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998).

The remaining portions of ground two, and the other grounds asserted in this rule 3.850 motion were legally and factually insufficient. We affirm their summary denial.

REVERSED in part, AFFIRMED in part, and REMANDED.

STEVENSON, TAYLOR and MAY, JJ., concur.