ERIC LAVERNE MCDADE
v.
THE STATE OF FLORIDA
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The appellate court affirmed the denial of five of six claims in a postconviction relief motion but reversed and remanded one claim. The reversed claim alleged ineffective assistance of counsel due to misadvice about cross-examination on prior convictions.
The court held that the claim of ineffective assistance of counsel based on misadvice regarding cross-examination on prior convictions was legally sufficient and not conclusively refuted by the record. Therefore, the trial court erred in summarily denying this claim.
[1] A claim of ineffective assistance of counsel based on affirmative misadvice regarding the scope of permissible cross-examination on prior felony convictions is legally su…
[2] If a postconviction motion is summarily denied based on the records in the case, the order must attach the portions of the files and records that conclusively show the de…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The remaining claim concerns McDade’s allegation that trial counsel was ineffective by affirmatively misadvising him that if he were to testify, the State would be allowed to cross-examine him regarding the nature and details of his prior felony conviction.”
Identifies the specific ineffective assistance of counsel claim at issue on appeal.
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Join FLexlaw to unlock all legal intelligenceEric McDade filed a motion for postconviction relief, alleging six claims, including ineffective assistance of counsel. The trial court summarily deni…
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PER CURIAM.
Eric Laverne McDade appeals the summary denial of his six-claim motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850.
We affirm, without further discussion, the trial court’s order with respect to five of the six claims. The remaining claim concerns McDade’s allegation that trial counsel was ineffective by affirmatively misadvising him that if he were to testify, the State would be allowed to cross-examine him regarding the nature and details of his prior felony conviction.1 The State concedes, and we agree, that this claim is legally sufficient and not conclusively refuted by the attachments to the order summarily denying McDade’s Rule 3.850 motion. See Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”). We therefore reverse and remand for the trial court to either conduct an evidentiary hearing on this single claim, or, if the trial court again summarily denies
this claim, to attach to the order those portions of the record that conclusively demonstrate McDade is not entitled to relief. See Fla. R. App. P. 9.141(b)(2)(D) (“On appeal from the [summary] denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”).
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- Konstantinos X. Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992)
- Miller v. State, 804 So. 2d 609 (Fla. 3d DCA 2002)
- Bell v. State, 901 So. 2d 180 (Fla. 3d DCA 2005)