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723 So. 2d 879

Johnson v. State

District Court of Appeal of Florida

Decided December 11, 1998

District Court of Appeal of Florida · decided 1998-12-11

Cited by 1 later decisions — most recently April 2000

1 state decisions

Relies on Strickland v. Washington · Oisorio v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1998-12-11

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PER CURIAM.

¶1Joseph Johnson appeals the trial court’s order denying his motion for postconvietion relief. Only one ground cited by Johnson merits discussion, upon which we reverse.

¶2Johnson claims that his trial attorney refused to permit him to take the stand in his own defense. The trial court concluded that Johnson’s right to testify on his behalf had been waived, and that he had not shown that his failure to testify resulted in any prejudice. However, the attachments to the court order do not show that Johnson’s right to testify in his own defense was waived, nor do they refute Johnson’s claim of prejudice resulting from the jury not hearing his testimony. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Oisorio v. State, 676 So.2d 1363, 1364 (Fla.1996) (holding that a defendant who claims ineffective assistance of counsel based on counsel’s refusal to permit defendant to testify must meet both prongs of Strickland).

¶3Accordingly, this case is remanded for the trial to court to either conduct an evidentiary hearing, or to deny the claim without a hearing if record attachments conclusively refute Johnson’s allegations concerning whether counsel provided ineffective assistance in denying him his right to testify on his behalf.

¶4Affirmed in part, reversed in part, and remanded.

THREADGILL, A.C.J., and FULMER and SALCINES, JJ., Concur.
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