                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

JOHN D. SMITH, JR.,                      NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Appellant,                         DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D14-3127

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed July 1, 2015.

An appeal from the Circuit Court for Clay County.
Don H. Lester, Judge.

John D. Smith, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      Appellant, John D. Smith, Jr., appeals the trial court’s denial of his motion for

post-conviction relief alleging ineffective assistance of trial counsel during a trial in

2009, where he was convicted of three counts of burglary. We reverse and remand

on Appellant’s fifth claim, because the post-conviction order and attached records
do not address or conclusively refute Appellant’s claim. We otherwise affirm the

post-conviction order denying Appellant’s remaining claims without comment.

                                      Discussion

        In his fifth claim for post-conviction relief, Appellant asserted that trial

counsel was ineffective for failing to object or obtain rulings on the admissibility of

certain Williams 1 rule evidence of prior bad acts, based on testimony offered by an

investigating officer and his probation officer. “When a motion for post-conviction

relief under [rule 3.850] is granted or denied without an evidentiary hearing, . . .

unless the record shows conclusively that the appellant is entitled to no relief, the

order shall be reversed and the cause remanded for an evidentiary hearing or other

appropriate relief.” Fla. R. App. P. 9.141(b)(2)(A) & (D).

        In this case, we cannot determine from the record attachments whether the

record conclusively refutes Appellant’s contention that trial counsel was ineffective

for failing to object to testimony from two specific witnesses. First, an investigating

officer testified that she searched a shed at Appellant’s home for stolen property

from a prior burglary, thereby suggesting that Appellant had engaged in prior

burglaries. Though cited in Appellant’s motion below, the post-conviction order

does not address this testimony. Second, a probation officer testified that Appellant

was on probation (for other bad acts) at the time the burglaries were committed. In


1
    Williams v. State, 110 So. 2d 654 (Fla. 1959).
                                            2
both instances, we cannot determine from the record whether Appellant’s Williams

rule arguments lack merit. Nor can we determine from the record whether this

testimony became a feature of the trial.

      Williams rule analysis is always two-fold. Collateral-crime evidence “is

admissible when relevant to prove a material fact in issue, but is inadmissible when

the evidence is relevant solely to prove bad character or propensity.” Wright v. State,

19 So. 3d 277, 291-92 (Fla. 2009) (citing § 90.404(2)(a), Fla. Stat. (2000)). See

also Jackson v. State, 140 So. 3d 1067, 1070-71 (Fla. 1st DCA 2014). Also, evidence

of other bad acts “cannot become a feature of the trial.” Wright, 19 So. 3d 277, 293

(citing Morrow v. State, 931 So. 2d 1021, 1022 (Fla. 3d DCA 2006), accord Bryan

v. State, 533 So. 2d 744, 746 (Fla. 1988)). “It is well-settled that the erroneous

admission of collateral crimes evidence is presumptively harmful and may be found

harmless only if the State establishes that there is no reasonable possibility that the

error contributed to the verdict.” Jackson, 140 So. 3d at 1073.

      Because the record attachments fail to refute Appellant’s Williams rule-based

arguments, we must reverse and remand. Upon remand, the trial court may either

grant an evidentiary hearing, or enter summary denial a second time and attach

portions of the record that conclusively refute Appellant’s allegations. See Ortiz v.

State, 968 So. 2d 681, 686 (Fla. 1st DCA 2007).

                                     Conclusion

                                           3
      Accordingly, we REVERSE and REMAND the post-conviction order’s

summary denial of Appellant’s fifth, Williams rule-related, claim, but AFFIRM all

other claims.

LEWIS, MARSTILLER, and OSTERHAUS, JJ., CONCUR.




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