IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DAVID ALLEN LASSITER,
Appellant,
v. Case No. 5D15-3826
STATE OF FLORIDA,
Appellee.
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Opinion filed March 4, 2016
3.850 Appeal from the Circuit
Court for Brevard County,
Charles J. Roberts, Judge.
David Allen Lassiter, Perry, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
David Allen Lassiter (defendant) appeals the trial court’s order denying his motion
for post-conviction relief. See Fla. R. Crim. P. 3.850. We affirm in part, reverse in part,
and remand for further proceedings.
The defendant was convicted, following a bench trial, of committing the following
crimes: (1) possession of a firearm by a convicted felon; (2) domestic battery by
strangulation; (3) aggravated assault with a firearm; and (4) battery domestic violence.
His judgment was affirmed on direct appeal.
The defendant thereafter filed a motion for post-conviction relief, raising seven
claims of ineffective assistance of counsel, including that trial counsel was ineffective for
failing to subpoena videos from two motels because they would have been exculpatory.
Specifically, he claimed the videos would have shown that: (1) the victim was already
injured when she drove his car to the motel; (2) the victim vandalized his car; and (3) the
victim chased him with a weapon. The trial court summarily denied this claim.
On appeal, the State properly concedes that the attached record did not refute the
defendant's claim regarding the videos. The State admitted that, if the videos existed, the
defendant might be able to demonstrate the requisite prejudice, as the victim’s credibility
at trial was crucial to the State’s case.
Because the record does not conclusively refute the defendant's claim, and
because nothing in the record indicates that trial counsel attempted to discover or locate
the videos, the trial court erred in summarily denying this claim. See Bethea v. State, 767
So. 2d 631 (Fla. 5th DCA 2000). Accordingly, we reverse the trial court's order denying
post-conviction relief as to this claim, and remand with instructions for the trial court to
either attach portions of the record conclusively refuting this claim or, in the alternative,
hold an evidentiary hearing. We affirm as to all other claims.
AFFIRMED in part; REVERSED in part; and REMANDED.
LAWSON, C.J., PALMER and LAMBERT, JJ., concur.
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