Davis v. State

608 So.2d 540 (1992)

Jay N. DAVIS, Appellant,
v.
STATE of Florida, Appellee.

No. 92-03151.

District Court of Appeal of Florida, Second District.

November 13, 1992.

PER CURIAM.

Davis timely appeals the summary denial of his postconviction relief motion. In his motion, Davis raises the ground of ineffective assistance of counsel. Davis alleges his trial counsel was ineffective in failing to present the testimony of an expert witness.

The trial judge determined that counsel's conduct was a tactical matter and denied Davis' motion without an evidentiary hearing. The determination of whether defense counsel's actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing. See Dauer v. State, 570 So.2d 314 (Fla. 2d DCA 1990). The trial judge in his order of denial did not attach portions of the record to refute Davis' allegation.

Accordingly, we reverse the trial court's order of denial and remand the case to the trial court. On remand, the trial court may either conduct an evidentiary hearing or again deny the motion and attach portions of the record which conclusively refute Davis' claim.

Reversed and remanded.

RYDER, A.C.J., and SCHOONOVER and PARKER, JJ., concur.