Appellant, Walter Morrison, filed a series of motions, amended motions, and addenda seeking postconviction relief from his 1998 robbery conviction. In these various pleadings, appellant alleged 14 instances of ineffective assistance of counsel and one instance of error stemming from the trial court’s failure to provide the defense with notice and an opportunity to be heard before responding to an inquiry from the jury during deliberations. The trial court summarily denied relief on all of these claims. Three of appellant’s claims of ineffective assistance will require further attention from the trial court. No error appears as to the remaining claims.
Drawing from the allegations in Morrison’s motion, on December 4, 1997, someone robbed the Panama Bar and Lounge in Jacksonville. The only eyewitness to the robbery was Teri Gilley, the bartender and cashier. Several days after the robbery, Gilley identified Morrison from a photographic line-up and later testified at trial, providing an in-eourt identification of appellant. During her testimony, Gilley described the robber as being around 5' 7" tall and average build with shoulder length hair and no facial hair. The theory of the defense rested upon misidentification and alibi. Morrison claims he is 5' 9" tall and 210 pounds and that, at the time of the robbery, he had short hair and a thick mustache. Because no physical evidence linked Morrison with the robbery, the result of the trial depended upon the jury’s assessment of the credibility of the appellant’s witnesses versus that of Gilley. Consequently, the three issues upon which we reverse call into question defense counsel’s choices regarding selection and examination of defense witnesses.
To state a facially sufficient claim of ineffective assistance of counsel, the convicted movant must have alleged deficient performance on the part of trial counsel and prejudice resulting from that deficient performance. See Cherry v. State,
The second ground for relief raised by appellant’s motion, 1(A)(2), alleged that trial counsel rendered ineffective assistance by failing to interview and call several potential witnesses. Appellant’s trial counsel, in fact, called three witnesses in an effort to show that appellant did not match the description given by Gilley at the time of the robbery. All three of these witnesses, however, could be characterized as either a friend or relative of the appellant and two of these witnesses were impeached by previous convictions involving dishonesty. Nonetheless, the trial court concluded that testimony provided by the additional witnesses would have been cu
In the motion, appellant claims he identified to counsel by name or contact information 10 to 15 convenience store employees who had observed him before and after the date of the robbery while he serviced various stores in the course of his employment as a plumber. According to Morrison, these witnesses would have been disinterested, having nothing more than a business relationship and no apparent reason to fabricate testimony. Given the defense strategy, we discern no readily apparent trial tactic by' which reasonable counsel would have not at least investigated the possibility of additional witnesses whose credibility could not have been easily challenged. Cf. Terrero v. State,
The third and fourth grounds for relief raised in the appellant’s motion, 1(B)(1) and 1(B)(2), each alleged ineffective assistance of counsel in dealing with rehabilitation of impeached defense witnesses. On direct examination, trial counsel asked defense witness Ann Almon whether she had previously been convicted of a crime of dishonesty. Almon answered that she had eight convictions occurring ten years earlier. The record reveals that trial counsel failed to bring out that Almon’s convictions were for tendering worthless checks rather than some more onerous crime, such as perjury, which may be inferred by the phrase “crime of dishonesty.” Appellant alleged that reasonable counsel would have chosen to engage in anticipatory rehabilitation. Anticipatory rehabilitation is a proper trial tactic which allows a party presenting the testimony of a witness to “delve into the nature or circumstances of the [prior] convictions for. the purpose of rehabilitating the witness by attempting to diminish the effect of the disclosures.” Lawhorne v. State,
Appellant’s other claim regarding counsel’s failure to rehabilitate a defense witness involved the testimony of his sister-in-law, Joan Cannoe. On cross-examination by the state, Cannoe testified that she had previously been convicted of a crime of dishonesty. As in the case of anticipatory rehabilitation, inquiry into the nature and circumstances of prior convictions is proper when a party’s witness is impeached on cross-examination. See Lawhorne,
The trial court summarily denied relief on each of these claims finding that trial counsel’s decision not to attempt rehabilitation was a trial tactic and was therefore not susceptible to an ineffective assistance of counsel claim. A determination that counsel’s action was based upon strategy or tactics, however, is generally inappropriate without an evidentiary hearing. See Jackson v. State,
Accordingly, we reverse the trial court’s order with respect to the appellant’s second, third, and fourth grounds for relief (grounds 1(A)(2), 1(B)(1), and 1(B)(2)) and remand with directions for the trial court to either attach portions of the record
AFFIRMED in part; REVERSED in part; REMANDED with directions.