Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SHANE LEON HAPPEL, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-2490 November 24, 2021 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Joseph A. Bulone, Judge. Rachael E. Reese of O'Brien Hatfield Reese, P.A., Tampa, for Appellant. PER CURIAM. Shane Leon Happel appeals the postconviction court's summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm without comment the postconviction court's ruling on all grounds except claim two, which dealt with trial counsel's failure to investigate facts. As to that claim, we reverse and remand for an evidentiary hearing. In November 2015, Happel was involved in a series of car accidents, fled from police, and shot at a law enforcement officer. The officer returned fire and injured Happel. The shooting occurred in a field near a store, a military recruitment center, and a business building. Surveillance footage from these establishments was not introduced at trial, nor was there other video evidence of the actual shooting. Due, in part, to the lack of video evidence of the incident, Happel's trial counsel argued to the jury that the State had not properly investigated the incident. Happel was convicted of attempted first-degree murder, felonious possession of a firearm, aggravated assault, fleeing or eluding, and two counts of leaving the scene of a crash involving property damage. Happel argued in his postconviction motion that trial counsel was ineffective for failing to investigate whether surveillance videos from the three surrounding establishments captured the exchange of gunfire heard by witnesses. Happel maintained that he did not fire a gun towards the officer and that the surveillance videos would support his contention. He further argued that the surveillance 2 videos would have undermined the officer's testimony that Happel fired at him, therefore creating a reasonable probability that Happel would not have been found guilty of attempted first-degree murder. The postconviction court summarily denied Happel's claim as being conclusory and speculative. The court erred by denying claim two without an evidentiary hearing because the record attachments to the court's order do not conclusively refute Happel's claims. While some of Happel's statements were conclusory, he specifically alleged that the videos existed and would have shown that he did not shoot at the officer. The court was required to accept these assertions as true to the extent that they are not refuted by the record. See Romaine v. State, 283 So. 3d 425, 429 (Fla. 2d DCA 2019) ("[T]o the extent that [the defendant's] allegations are not conclusively refuted by the record, we must accept the factual allegations of his motion as true. As such, we must accept as true his allegation that '[w]ith a clearer picture of the [perpetrator], the jury would have determined that it was not [the defendant] in the video.' " (third and fourth alterations in original) (citation omitted)). 3 In his amended motion, Happel made allegations that the surveillance videos existed "from the three locations," which "pointed directly on the area where the Defendant and Trooper McMillan met." He argued that the video footage would have corroborated his theory of defense that he never fired any shots towards Trooper McMillan and, "instead, Trooper McMillan planted the firearm on the Defendant." These allegations, which we are bound to accept as true for the sake of our analysis, give rise to the question of whether the decision not to investigate the videos was a reasonable trial strategy. On the record before this court, we cannot answer this question without an evidentiary hearing. See Martin v. State, 205 So. 3d 811, 813 (Fla. 2d DCA 2016) (“[T]o conclude that an action or inaction taken by a trial attorney was a strategic decision generally requires an evidentiary hearing.” (alternation in original) (quoting Hamilton v. State, 915 So. 2d 1228, 1231 (Fla. 2d DCA 2005))); Long v. State, 214 So. 3d 800, 801 (Fla. 1st DCA 2017) (concluding that record attachments to the trial court's order neither "conclusively refute[d] Long’s allegation regarding the existence of a surveillance video" nor "clearly establish[ed] that defense counsel’s failure to obtain the 4 surveillance video was a reasonable trial strategy"). As this court previously explained in Martin, If the video did in fact exist and would have shown what [the defendant] claims, then the failure to investigate and obtain that video would likely be prejudicial. It is therefore necessary for the postconviction court to know the extent of counsel's investigation into the video's existence before it can determine whether or not her conduct was reasonable and therefore not deficient. 205 So. 3d at 813. Similarly, if the videos exist and show what Happel claims they do, then failure to investigate and obtain the videos was likely prejudicial. Accordingly, we reverse the denial of claim two because the postconviction court erred by summarily denying it as conclusory. We remand to the trial court to either attach portions of the record conclusivey refuting Happel’s claim or to hold an evidentiary hearing on the matter. The order denying postconviction relief is otherwise affirmed. Affirmed in part, reversed in part, and remanded. NORTHCUTT, ATKINSON, and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 5