Opinion
No. 87-0100.
April 8, 1987.
Appeal from the Circuit Court, Broward County, Mark A. Speiser, J.
Raymond N. Taylor, pro se.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Robert S. Jaegers, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks reversal of an order denying his motion for post conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. He claims ineffective assistance of counsel and alleges that his counsel failed to call a key alibi witness named L.C. Bryant. Appellant's trial witness list did not contain the name of L.C. Bryant. However it did list a witness named L.C. Ruffin. The trial court failed to resolve the discrepancy regarding the identity (or identities) of L.C. Ruffin and L.C. Bryant.
Appellee has submitted an affidavit from appellant's defense counsel which purports to answer the question concerning the identity of these witnesses. However it is not the province of this court to take evidence and to make findings of fact. The trial judge should have conducted an evidentiary hearing to resolve the discrepancy between these witnesses and the relevance, if any, to appellant's claim of ineffective assistance of counsel.
Accordingly, we reverse the trial court's order denying appellant's motion for post conviction relief and remand this matter for further proceedings.
REVERSED and REMANDED.
DOWNEY and ANSTEAD, JJ., concur.