LARRY THOMAS MCCLAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Thomas McClain appealed the summary denial of his motion for post-conviction relief based on ineffective assistance of counsel claims. The court held that ineffective assistance claims are properly raised in post-conviction motions rather than on direct appeal, and reversed the trial court's denial of two specific ineffective assistance allegations because they were facially sufficient and could not be refuted based on the appellate record alone.
Ineffective assistance of counsel allegations are properly raised in post-conviction motions, not direct appeals, and facially sufficient claims cannot be summarily denied when the state cannot refute them without recourse to matters outside the record. The court reversed the denial of McClain's two ineffective assistance claims and remanded for attachment of record portions refuting the claims or an evidentiary hearing.
[1] Ineffective assistance of counsel claims are properly raised in a motion for post-conviction relief, not on direct appeal.
[2] A trial court's failure to attach portions of the record refuting the allegations of a post-conviction relief motion cannot be remedied on appeal by the state's submissio…
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Join FLexlaw to unlock all legal intelligence“Contrary to the trial court's ruling, ineffective assistance of counsel allegations are not ordinarily reviewable by direct appeal, but are properly raised in a motion for post-conviction relief.”
Establishes the proper procedural mechanism for raising ineffective assistance claims
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Join FLexlaw to unlock all legal intelligenceMcClain was convicted of stealing property. He filed a motion for post-conviction relief alleging numerous grounds, including that his trial counsel f…
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PER CURIAM.
Larry Thomas McClain (appellant) appeals an order summarily denying his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Although the motion alleges numerous grounds for relief, we find only two claims of ineffective assistance of counsel merit discussion.
Appellant contends his trial counsel was ineffective because he (1) failed to depose the state’s crime scene investigators concerning allegedly exculpatory fingerprint and footprint evidence, and (2) failed to depose Donna McClain and Michael Lee Roberts concerning appellant’s alleged purchase of the property which appellant subsequently was convicted of stealing.
The trial court denied the motion, finding all claims raised in the motion for post-conviction relief could have been raised on direct appeal.
We affirm in part, and reverse in part.
We concluded the referenced ineffective assistance of counsel allegations were facially sufficient to show a basis for relief, and requested a response from the state in accordance with the procedure outlined in Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986). The state’s response candidly recognizes that the specific allegations at issue cannot be refuted on the basis of the record before this court. The state further recognizes that reference to matters outside the record contravenes Florida Rule of Appellate Procedure 9.140(g). Despite this express recognition of the confines of the appellate process, counsel for the state has attached a voluminous appendix taken from the record on direct appeal, which purportedly demonstrates the “bogus” nature of appellant’s claims.
Contrary to the trial court’s ruling, ineffective assistance of counsel allegations are not ordinarily reviewable by direct appeal, but are properly raised in a motion for post-conviction relief. Loren v. State, 601 So. 2d 271 (Fla. 1st DCA 1992). We consider the state’s admitted inability to refute the facially sufficient allegations of ineffective assistance of counsel without recourse to matters outside the record, warrants reversal of that portion of the order which denied appellant’s ineffective assistance of counsel claims.
In a related vein, we grant appellant’s motion to strike the appendix attached to the state’s response. A trial court’s failure to attach portions of the record refuting the allegations of a rule 3.850 motion cannot be remedied on appeal by the state’s attempt to furnish material refuting the prisoner’s claims. See Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984); Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991). The appendix provided by the state in this case was not considered by the trial court in ruling on the motion for post-conviction relief, and cannot be considered by this court in determining the propriety of the trial court’s order.
Accordingly, we reverse that portion of the order denying appellant’s ineffective assistance of counsel allegations, insofar as they pertain to counsel’s failure to depose the state’s crime scene investigator concerning allegedly exculpatory fingerprint and footprint evidence, and counsel’s failure to inquire further of Donna McClain and Michael Lee Roberts as to appellant’s alleged purchase of property which he was convicted of stealing. We remand these matters for attachment of portions of the record refuting the claims, or for an evidentiary hearing.
ERVIN, JOANOS and MICKLE, JJ., concur.
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Langdon v. State, 947 So. 2d 460 (Fla. 3d DCA 2006)…the preparation of an amended order or by ordering the trial court to supplement the record with the necessary records. (Emphasis added). In support of its contrary decision, the Court offers only a quotation of the ipse dixit in McClain v. State, 629 So. 2d 320, 321 (Fla. 1st DCA 1993), that [a] trial court’s failure to attach portions of the record refuting the allegations of a rule 3.850 motion cannot be remedied on appeal by the state’s attempt to furnish material refuting the prisoner’s claims. Op. a…1 / 2
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Doss v. State, 644 So. 2d 124 (Fla. 1st DCA 1994)…is required. But it is also true that any portion of the record on which the order depends should be attached to the order. Fla.R.Crim.P. 3.850(d); Taylor v. State, 19 Fla.L.Weekly D1148, 1994 WL 201454 (Fla. 1st DCA May 25, 1994); McClain v. State, 629 So. 2d 320 (Fla. 1st DCA 1993). Here, the order contains numerous citations to the record, including transcript page references regarding specific allegations, and concludes “that the record clearly refutes the defendant’s allegations.” Because the portions o…
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Gholston v. State, 648 So. 2d 192 (Fla. 1st DCA 1994)…erwise. ‘We consider that the state’s admitted inability to refute the facially sufficient allegations ... without recourse to matters outside of the record, warrants reversal of’ the order denying that portion of the 3.850 motion. McClain v. State, 629 So. 2d 320, 321 (Fla. 1st DCA 1993). With regard to the two claims of ineffective assistance of counsel, first, the State asserts that the motion is incorrect in claiming that defense counsel failed to present certain evidence to the trial court regarding th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Loren v. State, 601 So. 2d 271 (Fla. 1st DCA 1992)
- Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984)
- Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991)