GREGORY CLEMENT BYRD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Court reversed denial of post-conviction relief where defendant raised a colorable claim of ineffective assistance of counsel for failure to assert the three-year statute of limitations defense to an aggravated battery charge.
A defendant raises a colorable claim of ineffective assistance of counsel when counsel fails to assert an applicable statute of limitations defense to a second-degree felony charge subject to a three-year limitations period.
[1] A second-degree felony conviction for aggravated battery with a firearm is subject to a three-year statute of limitations under section 775.15(2)(b), Florida Statutes, ra…
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of aggravated battery with a firearm, classified as a second-degree felony subject to a three-year statute of limitations. Def…
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PER CURIAM.
We reverse the order denying defendant’s motion for post conviction relief. As properly conceded by the state, the court erred in applying a four-year statute of limitations: Defendant was convicted of aggravated battery with a firearm, a second degree rather than a first degree felony. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992).
Therefore, the prosecution was subject to the three-year statute of limitations. § 775.15(2)(b), Fla. Stat. (1991). Defendant, however, was arrested more than three years after the commission of the offense.
The record is devoid of evidence explaining the delay in commencing prosecution of defendant.
Therefore, defendant has raised a color-able claim of ineffective assistance of counsel for failure to raise the running of the limitations statute. See Lucas v. State, 718 So. 2d 905 (Fla. 3d DCA 1998); McNeil v. State, 673 So. 2d 125 (Fla. 3d DCA 1996).
Accordingly, we remand for an evidentiary hearing to determine the basis for delay in prosecuting defendant, and if the delay was unreasonable, and whether defense counsel was ineffective for failing to seek dismissal of the aggravated battery charge based on the statute of limitations.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Earvin Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016)…ut a remedy; the defendant may seek postconviction relief on the ground that trial counsel rendered ineffective assistance in failing to raise the issue in the trial court. See, e.g., Harper v. State, 43 So. 3d 174 (Fla. 3d DCA 2010); Byrd v. State, 754 So. 2d 191 (Fla. 3d DCA 2000); McGregor v. State, 933 So. 2d 1244 (Fla. 1st DCA 2006); Morris v. State, 909 So. 2d 428 (Fla. 5th DCA 2005); Constantine v. State, 566 So. 2d 321 (Fla. 2d DCA 1990). . As noted in the majority opinion, Smith did move to dismiss…
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O'Connor v. State, 785 So. 2d 758 (Fla. 1st DCA 2001)…failing to elicit a factual basis for his plea is without merit. However, because the appellant has stated a facially sufficient claim that his counsel was ineffective for failing to pursue a statute of limitations [*759] defense, see Byrd v. State, 754 So. 2d 191, 192 (Fla. 3d DCA 2000), we reverse the summary denial of that claim and remand to the trial court to either conduct an evidentiary hearing or attach record excerpts conclusively demonstrating that the appellant is not entitled to the relief he seek…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Lucas v. State, 718 So. 2d 905 (Fla. 3d DCA 1998)
- Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992)
- McNEIL v. State, 673 So. 2d 125 (Fla. 3d DCA 1996)