         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


JOHNNY ANTHONY MARSHALL,

              Appellant,

 v.                                                        Case No. 5D16-1081

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed August 19, 2016

3.850 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Johnny Anthony Marshall, Milton, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.



PER CURIAM.

       Johnny Anthony Marshall appeals the summary denial of his motion for

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm

as to Grounds B, D, and E. However, because the record does not conclusively refute

Marshall’s claims that counsel was (1) ineffective for failing to object to the introduction of

hearsay by Detective Newton and (2) ineffective for failing to investigate and present an
alibi defense, we reverse the summary denial of Grounds A and C and remand for the

postconviction court to attach portions of the record conclusively refuting those claims or

for an evidentiary hearing.1 See Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)

("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion

unless (1) the motion, files, and records in the case conclusively show that the prisoner

is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing

Maharaj v. State, 684 So. 2d 726 (Fla. 1996))).

       AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY, BERGER and EDWARDS, JJ., concur.




       1  See generally Hannon v. State, 941 So. 2d 1109, 1138 (Fla. 2006) (noting that
trial strategy cannot normally be determined without an evidentiary hearing, but also
stating that an evidentiary hearing is not necessary when "it is so obvious from the face
of the record that trial counsel’s strategy not to present a [particular defense] is very
clearly a tactical decision well within the discretion of counsel . . .").


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