Opinion
Case No. 2D03-1625.
Opinion filed May 19, 2004.
Appeal from the Circuit Court for Hillsborough County, Jack Espinosa, Jr., Judge.
James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
Lolita Barthel appeals a final order denying — summarily and after an evidentiary hearing — her postconviction motion for relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court applied an incorrect statement of the law for determining whether Barthel presented a facially sufficient claim for relief, we reverse.
Barthel asserted twenty grounds for relief in her postconviction motion. We find error only with the trial court's summary denial of ground sixteen of her motion, which alleged that her trial counsel provided ineffective assistance because he did not call a potential alibi witness to testify at Barthel's trial. In order to allege an ineffective assistance of counsel claim for failing to call a witness, the movant must set forth: "(1) the identity of the prospective witness; (2) the substance of the witness' testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial." Robinson v. State, 659 So.2d 444, 445 (Fla. 2d DCA 1995). In its order summarily denying Barthel's claim of ineffective assistance, the trial court citedRobinson for the above stated rule. However, the trial court added a fourth requirement to the test: "an explanation as to . . . why the failure was not simply a matter of trial strategy." Our case law on this subject does not support this additional requirement. See, e.g., Neal v. State, 854 So.2d 666, 669 (Fla. 2d DCA 2003); Odom v. State, 770 So.2d 195, 197 (Fla. 2d DCA 2000); Prieto v. State, 573 So.2d 398, 399-400 (Fla. 2d DCA 1991); see also Nelson v. State, 816 So.2d 694, 695-96 (Fla. 5th DCA 2002) (noting interdistrict conflict on an additional requirement not at issue in this appeal and not recognized in this district — an allegation that the witness was available to testify), review granted, 837 So.2d 411 (Fla. 2003). Therefore, we conclude that the trial court applied an incorrect formulation of the law to determine if Barthel presented a facially sufficient claim for relief.
Accordingly, we reverse the order of the trial court as to this ground only and remand for further proceedings consistent with this opinion.
Reversed and remanded.
CASANUEVA and COVINGTON, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED