Summary
stating "[i]f counsel made a tactical decision to abandon the alibi defense, an evidentiary hearing is required to determine whether that was a reasonable strategic choice"
Summary of this case from Button v. StateOpinion
Case No. 4D00-4063
Opinion filed July 5, 2001 Rehearing Denied September 4, 2001
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Marvin Mounts, Jr., Judge; L.T. Case No. 94-13037CFA02.
Adams Wiggins, Bowling Green, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
Adam Wiggins appeals the summary denial of his post-conviction motion. He raised several grounds, including his claim that his trial counsel was ineffective for failing to call the witness listed on his notice of alibi defense to testify at trial.
The state's response to the motion attached the witness' pre-trial statements. In his statements to the police, he expressed confusion about the date and time of the events to which he would have testified. In his pre-trial deposition, he expressed more confidence in his recollections. The trial court adopted the state's argument that defense counsel made a strategic choice not to call the witness due to his credibility problems.
If counsel made a tactical decision to abandon the alibi defense, an evidentiary hearing is required to determine whether that was a reasonable strategic choice. McMillian v. State, 717 So.2d 102 (Fla. 4th DCA 1998); Anthony v. State, 660 So.2d 374 (Fla. 4th DCA 1995). We reverse the order denying the motion and remand for an evidentiary hearing on this allegation only.
STONE, GROSS, and TAYLOR, JJ., concur.