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

MICHAEL S. RATLEY,                      NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D13-3673

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 16, 2014.

An appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

Michael S. Ratley, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Michael S. Ratley appeals the denial of his claim of ineffective assistance of

trial counsel. Because Ratley is entitled to an evidentiary hearing on his claim, the

summary denial of relief was erroneous.
      Following the affirmance of his conviction and sentence for the first degree

murder of his wife, Ratley timely filed a motion for post-conviction relief on the

authority of rule 3.850, Florida Rules of Criminal Procedure. In his motion, he

raised four claims of ineffective assistance of trial counsel. In his first claim,

Ratley asserted trial counsel rendered ineffective assistance for failing to move to

disqualify the trial judge assigned to his criminal case. Prior to the criminal trial,

Ratley was a party to a civil proceeding involving the custody his child. According

to Ratley’s motion, Judge Foster presided over the proceeding and during the

course thereof repeatedly referred to Ratley as a “murderer.” Judge Foster later

presided over the criminal trial. Ratley alleges in his post-conviction motion that

he advised his defense counsel of these facts prior to the commencement of his

criminal case, but counsel did not move to disqualify Judge Foster. Judge Foster

also presided over Ratley’s post-conviction proceeding at issue in the case at bar.

      While granting an evidentiary hearing on the other claims raised, the circuit

court denied an evidentiary hearing as to the ineffective assistance claim described

above. Explained the circuit court:

             Ground One: Defendant attributes several statements to
             the presiding judge during dependency hearings without
             attaching or reference to the transcripts of these
             proceedings of which were conducted with the presence
             of a court reporter. Without the transcripts defendant’s

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            allegations are unsupported by the record and his request
            as to Ground One is denied.

      Failure to seek disqualification of a trial judge may be the basis for an

ineffective assistance of counsel claim. See Thompson v. State, 990 So. 2d 482

(Fla. 2008); Polanco v. State, 993 So. 2d 566 (Fla. 4th DCA 2008). The circuit

court did not find Ratley’s claim to be legally insufficient, and indeed, given the

allegations made in the motion for post-conviction relief, the claim was sufficient.

See Thompson, and Thompson v. State, 764 So. 2d 630 (Fla. 1st DCA 2000). If a

claim is legally sufficient, the claim can be resolved as a matter of law or by

reliance upon the records of the case without resort to an evidentiary hearing. Fla.

R. Crim. P. 3.850(f)(5). The circuit court did not resolve the claim as a matter of

law and did not rely on records to deny relief. Instead, the circuit court denied

relief because Ratley had not yet offered evidence in support of his claim. Such a

disposition was erroneous. The State is to be given an opportunity to respond to

claim one of the motion for post-conviction relief. Fla. R. Crim. P. 3.850(f)(6).

Upon receipt of the State’s response, the trial court is to grant an evidentiary

hearing if the claim cannot be denied as a matter of law or because the record

refutes the claim; such record must be attached to the order denying relief. See

White v. State, 600 So. 2d 1236 (Fla. 2d DCA 1992).




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      Accordingly, the denial of relief as to claim one of Ratley’s motion for post-

conviction relief is reversed, and the cause is remanded for further proceedings.

We affirm the remaining claims without comment.

      AFFIRMED, in part, REVERSED, in part, and REMANDED.

VAN NORTWICK, WETHERELL, AND MAKAR, JJ., CONCUR.




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