FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hendry County; James D. Sloan,
LeClaire, pro se.
Jo Bondi, Attorney General, Tallahassee, and Jeffrey H.
Siegal, Assistant Attorney General, Tampa, for Appellee.
LeClaire appeals from the order denying his motions filed
pursuant to Florida Rule of Criminal Procedure 3.850 in two
separate circuit court cases. We affirm in part and reverse
motions raise multiple claims of ineffective assistance as to
a 2004 case and a 2010 case. LeClaire entered an open plea to
the charges in the 2004 case after being convicted following
a trial in the 2010 case. The cases involved the same victim,
and LeClaire was charged with several counts of aggravated
battery and sexual battery.
postconviction court summarily denied a number of
LeClaire's claims and denied the remaining claims
following an evidentiary hearing. We reverse the denial of
two summarily denied claims bearing on the 2010 case and the
denial of one claim following an evidentiary hearing and
bearing on the 2004 case.
motion claiming ineffective assistance of trial counsel in
the 2010 case, LeClaire contended that counsel was
ineffective for failing to investigate and call two witnesses
at trial, Alvin Freeman and Tracy Thomas. LeClaire argued
that these witnesses would have supported his defense that no
sexual battery occurred because they would have testified
that the victim and LeClaire arrived at Mr. Freeman and Ms.
Thomas's apartment together and were affectionate to one
another, that the victim was not in distress, and that the
victim spoke of having had "birthday sex" with
LeClaire after the victim and LeClaire emerged from the
bathroom together. LeClaire contended that these
witnesses' testimony would have contradicted the
victim's trial testimony.
claim is facially sufficient, and he alleged how the failure
to call Mr. Freeman and Ms. Thomas prejudiced him.
"[T]he failure to investigate or call an exculpatory
witness 'presents a prima facie showing of entitlement to
relief, subject to rebuttal by evidence from the record or
testimony at an evidentiary hearing.' " Honors
v. State, 752 So.2d 1234, 1236 (Fla. 2d DCA 2000)
(quoting Prieto v. State, 573 So.2d 398, 399 (Fla.
2d DCA 1991)). The records attached to the postconviction
court's order do not refute LeClaire's claim.
Further, the alleged testimony would be admissible for
impeachment purposes, and it would support LeClaire's
defense on that basis. See Floyd v. State, 202 So.3d
137, 140 (Fla. 2d DCA 2016) (reversing the summary denial of
a claim of newly discovered evidence where the witnesses'
statements would have been admissible only for impeachment
purposes, would have supported the defendant's theory of
defense, and the claim was not refuted by the record). Thus,
summary denial of this claim was improper. See Downs v.
State, 227 So.3d 694, 697 (Fla. 5th DCA 2017).
regard to the 2010 case, LeClaire also raised a claim of
cumulative error which was summarily denied. In light of our
reversal of the denial of his claim that counsel was
ineffective for failing to call two witnesses, we cannot
fully address the claim of cumulative error and thus remand
for further consideration. See Osorio v. State, 233
So.3d 516, 517 (Fla. 2d DCA 2017).
motion claiming ineffective assistance of counsel in the 2004
case, LeClaire contended that counsel failed to advise him
that the trial court could run his sentences in the 2004 case
consecutively to his sentences in the 2010 case. The
postconviction court did not address this claim as it was
raised; rather, the postconviction court addressed it as a
claim of affirmative misadvice and denied it following the
evidentiary hearing. The court relied upon counsel's
testimony that she did not advise LeClaire that his sentences
in the 2004 case would run concurrently with his sentences in
the 2010 case, finding that testimony more credible than
LeClaire's. However, where the postconviction court fails
to address the claim as raised, remand is appropriate.
See Winfrey v. State, 226 So.3d 897, 897-98 (Fla.
4th DCA 2017) ("The trial court failed to rule on
Winfrey's claim within ground one that counsel failed to
advise him, before he entered an open plea, that the court
could impose consecutive sentences. We therefore reverse and
remand for the trial court to consider that claim.").
neither the record attachments nor the testimony at the
evidentiary hearing reflect that counsel or the trial court
advised LeClaire what the maximum sentences could be, that
those sentences could be imposed consecutively to his 2010
sentences, or what his maximum exposure would be. See
Odegaard v. State, 137 So.3d 505, 508 (Fla. 2d DCA
2014). At the evidentiary hearing, trial counsel was not
asked whether she advised LeClaire that the court could
impose consecutive sentences. Accordingly, we reverse the
denial and remand for consideration of whether trial counsel
was ineffective for failing to advise LeClaire that the trial
court could run his sentences in the 2004 case consecutively
to his sentences in the 2010 case, the claim LeClaire raised.
affirm without comment the remaining grounds raised by
LeClaire on appeal. We reverse the grounds discussed herein
and remand with instructions that the postconviction court
either attach records which conclusively refute
LeClaire's claims regarding the witnesses' testimony
and counsel's failure to advise him that the court could
impose consecutive sentences or hold an ...