WILLIAM CLAIRVIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Clairvin appeals denial of his postconviction motion for ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. The Fifth District affirms the denial of three grounds but reverses and remands the fourth ground, which challenges trial counsel's failure to request a limiting instruction for a co-defendant's videotaped statement.
The court reversed the summary denial of Ground Four because the record did not conclusively show that the co-defendant's statement satisfied the requirements for admission as substantive evidence under section 90.803(5). The co-defendant failed to attest to the accuracy of the portion of the statement implicating Clairvin, which is required for recorded recollection admission.
[1] A trial court errs in summarily denying a postconviction relief claim alleging ineffective assistance of counsel for failing to request a limiting instruction when the re…
[2] Admission of a prior recorded statement as substantive evidence under the recorded recollection exception requires the witness to attest that the statement was made when…
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“In Florida, the admission of past recollection recorded under section 90.803(5) requires the witness to do two things: First, indicate that the statement was made at a time when the events were fresh in his or her mind, and second, attest to the accuracy of the memorandum or record.”
Establishes the two-part test required for admission of recorded recollection as substantive evidence
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Join FLexlaw to unlock all legal intelligenceClairvin was convicted after a jury trial of Robbery with a Firearm (Counts 1-2), Attempted Robbery with a Mask (Count 3), Kidnapping (Counts 4-6), an…
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William Clairvin appeals the denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850.1 We affirm the denial of Grounds One, Two, and Three without further discussion, but for the reasons that follow, we reverse that portion of the order summarily denying Ground Four.
In Ground Four, Clairvin argues that his trial counsel was ineffective for failing to request a limiting instruction that would have required the jury to consider the videotaped statement of the co-defendant for impeachment purposes only. The trial court summarily denied this ground after concluding that Clairvin was not entitled to a limiting instruction because the post-arrest statement was ad*194mitted as substantive evidence under the recorded recollection exception to the hearsay rule. See § 90.803(5), Fla. Stat. This was error.2
In Florida, the admission of past recollection recorded under section 90.803(5) requires the witness to do two things: First, indicate that the statement was made at a time when the events were fresh in his or her mind, and second, attest to the accuracy of the memorandum or record. See Polite v. State, 116 So.3d 270, 278 (Fla.2013). Because the record attachments to the order denying Clairvin’s motion do not support a finding that the prior recorded statement of the codefendant was admissible as substantive evidence under section 90.803(5),3 and because the record excerpts do not otherwise refute Clairvin’s facially sufficient claim, we reverse that portion of the trial court’s order summarily denying Ground Four, and remand for attachment of portions of the record conclusively refuting that ground or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.”).
AFFIRMED, in part, REVERSED, in part, and REMANDED.
SAWAYA, PALMER and BERGER, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Freeman v. State, 761 So. 2d 1055 (Fla. 2000)
- Rodriguez v. State, 753 So. 2d 29 (Fla. 2000)
- Morton v. State, 689 So. 2d 259 (Fla. 1997)
- Darius Jamine Polite v. State, 116 So. 3d 270 (Fla. 2013)
- Clairvin v. State, 56 So. 3d 854 (Fla. 5th DCA 2011)
- Cleveland Long v. State, 56 So. 3d 854 (Fla. 1st DCA 2011)