MIKE MCGREGOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McGREGOR appeals the trial court's summary denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The court affirms the denial of his first and third claims but reverses the denial of his second claim regarding counsel's failure to advise of a statute of limitations defense to the escape charge.
The court holds that McGREGOR's claim of ineffective assistance of counsel based on counsel's failure to advise of the statute of limitations defense was legally sufficient and not conclusively refuted by the record, requiring an evidentiary hearing rather than summary denial.
[1] A postconviction motion claim is not conclusively refuted by the record when it alleges ineffective assistance of counsel for failing to advise of a statute of limitation…
[2] The statute of limitations for escape, a second-degree felony, is three years, commencing the day after the offense was committed.
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“Because the appellant's claim of ineffective assistance of counsel was legally sufficient, it was error for the trial court to summarily deny the claim.”
Establishes that a legally sufficient ineffective assistance claim cannot be summarily denied without an evidentiary hearing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcGREGOR pled no contest on February 27, 2003 to several charges including possession of a firearm by a convicted felon, attempted escape, aggravated …
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PER CURIAM.
The appellant challenges the trial court’s summary denial of his posteonvietion motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
We affirm the trial court’s denial of the appellant’s first and third claims without further discussion.
However, we reverse the trial court’s denial of the appellant’s second claim because it is not conclusively refuted by the record and requires an evidentiary hearing. On February 27, 2003, the appellant pled no contest to possession of a firearm by a convicted felon, attempted escape, aggravated fleeing and eluding, and escape.
On June 9, 2004, the appellant filed a motion seeking postconviction relief. In his second claim, the appellant alleged that his counsel was ineffective for failing to advise him that he had a viable defense to the charge of escape because the prosecution was commenced outside the applicable statute of limitations. The appellant alleges that he would not have entered his plea if he had been aware of this defense. The appellant alleges that he escaped from county jail on May 26, 1996, and the capias against him was not executed until December 18, 2002. Because escape is a second-degree felony, prosecution was required to be commenced within three years. § 775.15(2)(b), Fla. Stat. (1995).
The statute of limitations for a charge of escape begins to run the day after the offense was committed, so it would have started on May 27, 1996. Newman v. State, 707 So. 2d 811 (Fla. 1st DCA 1998).
The execution of the capias was clearly outside of the three-year time limit.
Moreover, there is no evidence in the record showing that the state conducted a reasonable search in an attempt to locate the appellant so it is unclear whether the time period could have been extended by three years. See § 775.15(6), Fla. Stat. (1995); Morgan v. State, 888 So. 2d 128, 129 (Fla. 3d DCA 2004)(holding that an evidentiary healing would be required to determine whether the statute of limitations would have been extended for an additional three years).
Even if the additional time was applicable to the appellant’s case, the statute of limitations would have been extended only until May 27, 2002, and the appellant alleges that the capias was not executed until December 18, 2002. Because the appellant’s claim of ineffective assistance of counsel was legally sufficient, it was error for the trial court to summarily deny the claim. We therefore reverse the trial court’s denial of the appellant’s second claim and remand for an evidentiary hearing.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
KAHN, C.J., BENTON and LEWIS, JJ., concur.
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Earvin Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016)…ief 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 several other counts asserting they were barred by the…
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Goings v. State, 76 So. 3d 975 (Fla. 1st DCA 2011)…in any event, section 775.15(6) ... which specifically considers a defendant’s absence from the state and permits the period of limitation to be extended therefor, limits such extension to a maximum of three years”). Similarly, in McGregor v. State, 933 So. 2d 1244, 1245 (Fla. 1st DCA 2006), we ruled that appellant had stated a legally sufficient claim for relief in his postconviction motion when he alleged counsel was ineffective for failing to inform him of a viable defense based on the statute of limitation…
Authorities Cited
- D.A. v. Fla. Dep't of Child. & Families, 888 So. 2d 128 (Fla. 3d DCA 2004)
- Morgan v. State, 888 So. 2d 128 (Fla. 3d DCA 2004)
- Newman v. State, 707 So. 2d 811 (Fla. 1st DCA 1998)