Dauer v. State

570 So.2d 314 (1990) Frederick DAUER, Appellant, v. STATE of Florida, Appellee. No. 90-02255. District Court of Appeal of Florida, Second District. September 7, 1990. Rehearing Denied November 27, 1990. PER CURIAM. Frederick Dauer timely appeals the summary denial of his timely filed postconviction relief motion. In his motion, Dauer raises numerous grounds. With the exception of Dauer's allegations concerning ineffective assistance of counsel, we find that the trial judge correctly denied the motion. The trial judge made a determination that the motion sufficiently alleged grounds of ineffective assistance of trial counsel and ordered the state attorney to file an answer to the motion. While responsive to the motion, the state attorney's answer did not provide conclusive information to warrant the denial of the motion without an evidentiary hearing. In fact, the response primarily states that counsel's actions, or lack of, were tactical. The determination of whether or not defense counsel's actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing. The portions of the records and files attached to the judge's order do not otherwise refute these particular allegations. Accordingly, we reverse the trial court's denial of appellant's motion with regard to the claims of ineffective assistance of trial counsel and remand the case to the trial court to conduct an evidentiary hearing. Reversed and remanded. SCHOONOVER, C.J., and HALL and THREADGILL, JJ., concur.