         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


DAVID ALLEN LASSITER,

              Appellant,

 v.                                                     Case No. 5D15-3826

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed March 4, 2016

3.850 Appeal from the Circuit
Court for Brevard County,
Charles J. Roberts, Judge.

David Allen Lassiter, Perry, pro se.

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


PER CURIAM.

       David Allen Lassiter (defendant) appeals the trial court’s order denying his motion

for post-conviction relief. See Fla. R. Crim. P. 3.850. We affirm in part, reverse in part,

and remand for further proceedings.

       The defendant was convicted, following a bench trial, of committing the following

crimes: (1) possession of a firearm by a convicted felon; (2) domestic battery by
strangulation; (3) aggravated assault with a firearm; and (4) battery domestic violence.

His judgment was affirmed on direct appeal.

       The defendant thereafter filed a motion for post-conviction relief, raising seven

claims of ineffective assistance of counsel, including that trial counsel was ineffective for

failing to subpoena videos from two motels because they would have been exculpatory.

Specifically, he claimed the videos would have shown that: (1) the victim was already

injured when she drove his car to the motel; (2) the victim vandalized his car; and (3) the

victim chased him with a weapon. The trial court summarily denied this claim.

       On appeal, the State properly concedes that the attached record did not refute the

defendant's claim regarding the videos. The State admitted that, if the videos existed, the

defendant might be able to demonstrate the requisite prejudice, as the victim’s credibility

at trial was crucial to the State’s case.

         Because the record does not conclusively refute the defendant's claim, and

because nothing in the record indicates that trial counsel attempted to discover or locate

the videos, the trial court erred in summarily denying this claim. See Bethea v. State, 767

So. 2d 631 (Fla. 5th DCA 2000). Accordingly, we reverse the trial court's order denying

post-conviction relief as to this claim, and remand with instructions for the trial court to

either attach portions of the record conclusively refuting this claim or, in the alternative,

hold an evidentiary hearing. We affirm as to all other claims.


       AFFIRMED in part; REVERSED in part; and REMANDED.



LAWSON, C.J., PALMER and LAMBERT, JJ., concur.




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