Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 26, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-2079 Lower Tribunal No. 09-8184A ________________ Louis Lee Bradshaw, Appellant, vs. The State of Florida, Appellee. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Louis Lee Bradshaw, in proper person. Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee. Before FERNANDEZ, HENDON, and MILLER, JJ. HENDON, J. Louis Lee Bradshaw appeals from the summary denial of his timely motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing. We review de novo an order summarily denying a motion for post-conviction relief. Lebron v. State, 100 So. 3d 132, 133 (Fla. 5th DCA 2012) (citing McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”)). Where no evidentiary hearing was held below, we must accept the defendant’s factual allegations as true to the extent they are not refuted by the record. McLin, 827 So. 2d at 954; Fla. R. App. P. 9.141(b)(2)(D). On March 12, 2009, Bradshaw was charged with one count of second-degree murder with a deadly weapon or firearm. The jury returned a verdict of guilty as charged and Bradshaw was sentenced to life in prison. On appeal, this Court reversed the conviction and sentence based on an improper manslaughter jury instruction. Bradshaw v. State, 61 So. 3d 1266 (Fla. 3d DCA 2011). On retrial, the jury once again returned a verdict of guilty as charged, and Bradshaw was again sentenced to life in prison. This Court per curiam affirmed the judgment and sentence. On petition for discretionary review, the Florida Supreme Court dismissed the petition for lack of jurisdiction in July 2017. In January 2018, Bradshaw filed 2 his timely motion under Florida Rule of Criminal Procedure 3.850, raising eight grounds based on ineffective assistance of counsel. The trial court summarily denied the motion, and Bradshaw appeals. We address only the first ground asserting that defense counsel at Bradshaw’s retrial was ineffective for failing to file a pretrial motion to dismiss the charges pursuant to Florida’s Stand Your Ground law, section 776.032, Florida Statutes (2009). 1 The record shows that Bradshaw asserted the defense of self-defense but did not testify at his second trial. The jury rejected the defense and found Bradshaw guilty of second-degree murder. In postconviction proceedings, the State proposed, and the trial court accepted, the argument that, even if there was prejudice as a result of defense counsel’s failure to file a motion for a pre-trial Stand Your Ground hearing, there was no evidence to suggest that the outcome would have been any different had Bradshaw testified at a pretrial Stand Your Ground hearing, and no evidence to suggest that Bradshaw would have actually testified in his own defense at such a hearing. 1 “Florida’s Stand Your Ground law confers immunity from prosecution if an individual uses deadly force in accordance with section 776.012(2), Florida Statutes.” Fletcher v. State, 273 So. 3d 1187, 1189 (Fla. 1st DCA 2019); see also § 776.032(1), Fla. Stat. (2018). Section 776.012(2) allows an individual to use or threaten to use deadly force “if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” 3 Without an evidentiary hearing, however, there is nothing in the record to support this assertion. The record on appeal does not provide any insight into defense counsel’s considerations or discussions with Bradshaw in preparation for the retrial. Without an evidentiary hearing, the trial court cannot speculate as to whether defense counsel’s failure to file a pretrial motion to dismiss was a strategic decision or constituted ineffective assistance of counsel. See Jackson v. State, 789 So. 2d 1218, 1220 (Fla. 1st DCA 2001) (“As this court has explained, ‘the determination of whether defense counsel’s actions were tactical is a conclusion best made by the trial judge following an evidentiary hearing.’” (quoting Rosemond v. State, 634 So. 2d 259, 260 (Fla. 1st DCA 1994)); State v. Watson, 921 So. 2d 774, 775 (Fla. 4th DCA 2006) (“Without an evidentiary hearing, there is no evidence that Watson’s counsel’s failure to object to the seating of the jurors in question was not a strategic decision on his part.”); see also Waters v. State, 267 So. 3d 538 (Fla. 1st DCA 2019). We therefore reverse and remand for an evidentiary hearing solely to address Bradshaw’s allegation that defense counsel was ineffective for failing to file a pre- trial motion to dismiss the charges pursuant to Florida’s Stand Your Ground law, section 776.032, Florida Statutes (2009). We affirm the remaining issues raised in Bradshaw’s postconviction motion. Affirmed in part, reversed and remanded in part. 4