               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


GREGORY KENNON,                              )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D18-180
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed January 4, 2019.

Appeal from the Circuit Court for Manatee
County; Hunter W. Carroll, Judge.

Gregory Kennon, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.


MORRIS, Judge.

             Gregory Kennon appeals from an order denying his motion for

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

Because we conclude that the postconviction court erred by summarily denying claims

one and two of Kennon's motion, we reverse and remand in part for further proceedings.
We affirm the portion of the order denying the remaining claims without further

comment.

                                     BACKGROUND

              Kennon was originally convicted of two counts of first-degree murder and

one count of armed burglary of a dwelling.1 He was sentenced to life in prison, and this

court affirmed his judgment and sentence. Kennon v. State, 127 So. 3d 512 (Fla. 2d

DCA 2013) (table decision). He subsequently filed his postconviction motion raising

eight claims.2 The postconviction court summarily denied seven of the claims and

denied the last remaining claim after an evidentiary hearing.

              In his first claim, Kennon argued that his trial counsel provided ineffective

assistance by failing to call as a witness one of Kennon's adversaries. Kennon asserted

that the adversary would have testified that he and Kennon had gotten into a fight on

the sidewalk at the apartment complex where the murder victim lived. Kennon argued

that such testimony would have explained why Kennon's blood was located near the

crime scene thereby proving his innocence. He alleged that he told his counsel about

the adversary and that the adversary was available to testify at the time of trial.

              The postconviction court summarily denied the first claim, concluding that

Kennon could not establish prejudice due to "all the evidence implicating [Kennon] in the

home invasion." Specifically, the postconviction court noted that a nurse and a

physician's assistant who treated Kennon for an injury to his arm twelve days after the

crimes occurred both testified that his injury was consistent with a gunshot wound and

              1We  note that the postconviction court referred to the armed burglary as a
home invasion in its order.
              2Because    we are reversing only the denial of the first two claims, we need
not detail the allegations of the remaining claims.

                                            -2-
did not match up with his explanation for the injury.3 The postconviction court also

noted that law enforcement recovered a ten millimeter firearm magazine from Kennon's

vehicle which matched the caliber of ammunition used in the underlying armed burglary.

The postconviction court explained that it was unlikely that testimony about a fight would

have changed the outcome of the trial.

              In his second claim, Kennon argued that his trial counsel provided

ineffective assistance by failing to interview and call Kennon's mother who was available

to testify that Kennon had been with her when the underlying crimes took place.

Kennon argued that such evidence would have provided him with an alibi that would

have resulted in the jury concluding that he was not guilty.

              The postconviction court summarily denied the second claim, first noting

that the State's summarization of the evidence during closing arguments referenced the

facts that Kennon knew one of the identified perpetrators, had an injury that was

consistent with a gunshot, and had access to a ten millimeter firearm and ten millimeter

ammunition. The postconviction court then determined that "[t]he forensic evidence

presented, while circumstantial, was nonetheless compelling enough to secure a jury

verdict." The postconviction court also determined that it was "improbable that

uncorroborated alibi testimony from [Kennon's] mother, whose bias would be self-

evident, would have changed the outcome of [Kennon's] trial."

                                       ANALYSIS

              A postconviction claimant is entitled to an evidentiary hearing if he alleges

"specific facts which are not conclusively rebutted in the record and which demonstrate


              3According to the witnesses, Kennon provided different explanations for
how he received the injury.

                                           -3-
a deficiency in trial counsel's performance that prejudiced the outcome of his trial."

Meus v. State, 968 So. 2d 706, 710 (Fla. 2d DCA 2007). On review of a summarily

denied claim, we must accept the claimant's "factual allegations as true to the extent

that they are not refuted by the record." Id. (citing Floyd v. State, 808 So. 2d 175, 182

(Fla. 2002)).

                "If potential witnesses—available to testify at trial—may have been able to

cast doubt on the defendant's guilt, the failure to investigate and call them at trial can

constitute ineffective assistance of counsel." Id. at 712. "The credibility and weight to

be given to" such testimony is a jury issue. Id. The fact that there may have been some

evidence that tended to support a guilty verdict was not a sufficient reason to summarily

deny Kennon's claims that counsel was ineffective for failing to interview and/or call his

adversary and his mother as witnesses. Indeed, the Florida Supreme Court holds that

"a claim of ineffectiveness in failing to present important exculpatory evidence cannot be

resolved on the basis of the mere existence of conflicting evidence in the record."

Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004). Similarly, "the mere existence of

evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing

to present evidence of innocence in the form of known and available alibi witnesses."

Id.4 "Rather, the record evidence must conclusively rebut the claim if the claim is to be

resolved without a hearing."5 Id.




                4See
                  also McCullough v. State, 247 So. 3d 6, 7 (Fla. 4th DCA 2018)
(applying Jacobs and reversing where appellant alleged ineffective assistance of
counsel based on counsel's failure to call his grandmother who would have testified that
he was at home with her when the crimes were committed).



                                             -4-
              However, "[t]ypically, it will be necessary to hold an evidentiary hearing to

determine why trial counsel did not call a particular witness." Terrell v. State, 9 So. 3d

1284, 1288-89 (Fla. 4th DCA 2009). Indeed, "a State response must be ordered and

considered before determining if a hearing is required unless the record demonstrates a

reasonable explanation or otherwise conclusively refutes the claim." Jacobs, 880 So.

2d at 555. Here, the record does not conclusively refute Kennon's first and second

claims.

              According to Kennon, his adversary was available to testify and his

testimony would have provided an explanation for the presence of Kennon's blood near

the crime scene. Such testimony was exculpatory in nature. Aside from the blood

evidence—which was the very evidence for which Kennon claimed to have an

explanation—the postconviction court cited to evidence that only circumstantially linked

Kennon to the crime. And some of that evidence, such as the testimony regarding

Kennon's alleged gunshot wound, did not clearly link Kennon to the crime because

there was no definitive testimony as to when the injury occurred. The testimony that

Kennon's adversary could have provided may have cast doubt on Kennon's guilt. Thus,

the postconviction court erred by summarily denying the first claim. See Jacobs, 880

So. 2d at 555.

              Regarding Kennon's second claim, the postconviction court determined

that the forensic evidence was compelling enough to secure a jury verdict, but again,

the fact that there exists some evidence of guilt is generally insufficient to rebut a claim



              5The  example provided by the Florida Supreme Court of a conclusive
rebuttal to a claim of ineffectiveness for failure to call a witness was where the record
demonstrated that the witness actually testified. Jacobs, 880 So. 2d at 555.

                                            -5-
of ineffectiveness for failure to present an alibi witness. See Jacobs, 880 So. 2d at 555;

McCullough v. State, 247 So. 3d 6, 7 (Fla. 4th DCA 2018). In order to summarily deny

such a claim, "the record evidence must conclusively rebut the claim." Jacobs, 880 So.

2d at 555. Yet here, the forensic evidence only circumstantially tied Kennon to the

crime. And, like the testimony that Kennon's adversary could have provided, Kennon's

mother's testimony could have cast doubt on Kennon's guilt. Thus the postconviction

court erred by summarily denying the second claim. See Jacobs, 880 So. 2d at 555;

McCullough, 247 So. 3d at 7.

              Accordingly, because the postconviction court erred by summarily denying

claims one and two of Kennon's motion, we reverse and remand that portion of the

postconviction court's order with instructions for the postconviction court to either attach

records conclusively refuting Kennon's claims or, in the alternative, to conduct an

evidentiary hearing. All other portions of the order are affirmed.

              Affirmed in part, reversed in part, and remanded.



BLACK and LUCAS, JJ., Concur.




                                            -6-
