Opinion
No. 3D01-1174.
July 17, 2002.
Appeal from the Circuit Court, Miami-Dade County, Jose M. Rodriguez, J.
John H. Lipinski, Hollywood, for appellant.
Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge.
We affirm the order denying defendant's post conviction relief motion, except as to the first issue raised by defendant. Defendant's motion is facially sufficient on this issue: trial counsel was ineffective for refusing defendant's request that he move to disqualify the trial judge upon being informed that the trial judge was a friend of the victim's husband, and possibly of the victim. Counsel's refusal cannot be summarily endorsed as a tactical or strategic decision. See Waters v. State, 779 So.2d 625 (Fla. 1st DCA 2001); Romano v. State, 562 So.2d 406 (Fla. 4th DCA 1990). See also Valle v. State, 705 So.2d 1331 (Fla. 1997) (citing Romano). Cf. Caughron v. State, 767 So.2d 606 (Fla. 4th DCA 2000). Although there was a hearing on this motion, no evidence was taken. We therefore reverse the order denying the motion on this issue and remand for an evidentiary hearing on this question.
Affirmed in part; reversed in part and remanded.