Leclaire v. State

• Decision Date: 25 May 2018
• Docket Number: Case No. 2D17–934
• Citation: 247 So.3d 678
• Parties: James LECLAIRE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

247 So.3d 678

James LECLAIRE, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17–934

District Court of Appeal of Florida, Second District.

Opinion filed May 25, 2018.

James LeClaire, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

James 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 in part.

LeClaire's 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.

The 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.

In his 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.

LeClaire's 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).

With 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).

In his 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...