Opinion
Case No. 96-1573
Opinion filed April 4, 1997.
An appeal the Circuit Court for Escambia County, Michael Jones, Judge.
John W. Tanner, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General; Mark C. Menser, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
Larry Fordham, appeals the trial court's order denying his motion for postconviction relief as it pertains to grounds one, four, five, eight, and nine of the motion. We affirm the order to the extent that it denies relief on grounds four, five, eight, and nine but find it necessary to reverse the order as to ground one, and remand for an evidentiary hearing.
In ground one of his motion, Fordham alleges that his trial counsel was ineffective for failing to move to suppress Fordham's confession on the basis that it was coerced and involuntary. The trial court denied relief, ruling that any effort on trial counsel's part to suppress the confession would have been futile. The self-serving testimony of the police officers upon which the court relied, however, along with the signed wavier of rights form, do not conclusively refute Fordham's allegations. The sworn motion sets forth sufficient facts of coercion to satisfy the dictates of Strickland v. Washington, 469 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and to require an evidentiary hearing. Consequently, we reverse on this point and remand the case for the trial court to conduct an evidentiary hearing on ground one.
Affirmed in part, reversed in part and remanded.
WEBSTER, LAWRENCE and PADOVANO, JJ., CONCUR.