         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2159
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RUDOLPH ANDREWS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

                         April 10, 2018


PER CURIAM.

     Appellant Rudolph Andrews, convicted of trafficking in
cocaine, filed a timely motion and then amended motion under
rule 3.850, Florida Rules of Criminal Procedure, asserting that
his trial counsel acted ineffectively. 1  Appellant’s amended
motion was denied without an evidentiary hearing — the trial
court finding that Appellant did not meet the prejudice prong of
the standard provided in Strickland v. Washington, 466 U.S. 668



    1
        The amended motion for post-conviction relief raised no
new issues and was therefore timely since it related back to the
initial motion. See Lukehart v. State, 70 So. 3d 503 (Fla. 2011).
(1984), and he appeals. The State concedes error, we accept the
concession, and reverse for an evidentiary hearing on the motion.

     Appellant’s specific issue was that counsel was ineffective by
failing to object when the State had the court reporter from the
hearing on Appellant’s motion to suppress read portions of
Appellant’s testimony from the suppression hearing to the jury
during trial. Appellant did not testify at trial, so there is no
argument that the Appellant’s testimony at the suppression
hearing was being used as impeachment at trial.

     A defendant’s testimony during a hearing on a motion to
suppress may not be entered into evidence against him in a
subsequent trial. See Simmons v. United States, 390 U.S. 377,
394 (1968). After a full review of the record, we cannot conclude
that the admission of Appellant’s testimony did not cause
Appellant prejudice. Johnson v. State, 537 So. 2d 1116, 1117-18
(Fla. 4th DCA 1989). 2 We therefore reverse and remand for the

    2
      As in Johnson, “the key question here was appellant’s
dominion and control over the cocaine. We surely cannot say
beyond a reasonable doubt that evidence out of appellant’s own
mouth demonstrating dominion and control would not reasonably
have had any effect on the trier of fact in determining guilt.” Id.
at 1118.

     This court conducted a comparison between the testimony
read before the jury, and the full transcript of the hearing
testimony. The comparison reflected that at least twice the
reporter read abbreviated selections which resulted in the
appearance that Appellant admitted he knew he had possessed
the cocaine removed from his boxer shorts. However, a full
reading of the transcript reflects that Appellant did not appear to
be admitting guilt, but was instead confirming that the cocaine
had been removed from his boxer shorts by the deputy. The
defense’s strategy at trial was to argue the deputy had framed
Appellant by pretending to remove the cocaine from Appellant’s
person.

     Further, the State repeatedly highlighted to the jury this
selection from Appellant’s hearing testimony, arguing this was an
admission of guilt. The State referred to this statement during
                                2
trial court to hold an evidentiary hearing to determine whether
the State can prove Appellant’s trial counsel had a strategic
reason for failing to object to this testimony. See Occhicone v.
State, 768 So. 2d 1037, 1048 (Fla. 2000) (discussing that counsel
cannot be found to have acted ineffectively if counsel engaged in a
strategic decision which “was reasonable under the norms of
professional conduct.”). If the trial court cannot conclude that
counsel’s failure to object constituted a reasonable strategic
decision, the trial court shall afford Appellant a new trial. See
Johnson, 537 So. 2d at 1118.

    REVERSED and REMANDED for an evidentiary hearing.

ROBERTS, BILBREY, and KELSEY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Rudolph Andrews, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.




argument on the elements of trafficking, asserting that
Appellant’s statement met the knowledge prong which the State
needed to prove to acquire his conviction for trafficking in
cocaine. The transcript reflects that these arguments concerning
the selected hearing testimony were, along with the testimony of
the two deputies who conducted the arrest of Appellant, central
to the State’s case.

                                3
