McClain v. State, 93-434
| Decision Date | 28 December 1993 |
| Docket Number | No. 93-434,93-434 |
| Citation | 629 So.2d 320 |
| Parties | 19 Fla. L. Weekly D57 Larry Thomas McCLAIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Larry Thomas McClain, Appellant pro se.
Robert A. Butterworth, Atty. Gen., James W. Rogers, Sr. Asst. Atty. Gen., and Carolyn Mosley, Asst. Atty. Gen., Tallahassee, for appellee.
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...
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Langdon v. State, 3D05-2791.
...to attach portions conclusively refuting the claim."); see also Futrell v. State, 932 So.2d 642 (Fla. 4th DCA 2006); McClain v. State, 629 So.2d 320, 321 (Fla. 1st DCA 1993)("A trial court's failure to attach portions of the record refuting the allegations of a rule 3.850 motion cannot be r......
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Doss v. State
...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 alle......
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SIZELOVE v. State, 98-01427.
...with these documents, which we now vacate on the basis of Wheeler v. State, 634 So.2d 213 (Fla. 4th DCA 1994), and McClain v. State, 629 So.2d 320 (Fla. 1st DCA 1993). Appendices supplied by the State in a response to the appellate court are not a substitute for documents attached to an ord......
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Fensler v. State, 95-4443
...hearing. See Sullivan v. State, 674 So.2d 214 (Fla. 4th DCA 1996); Matthews v. State, 664 So.2d 6 (Fla. 4th DCA 1995); McClain v. State, 629 So.2d 320 (Fla. 1st DCA 1993). GLICKSTEIN, DELL and POLEN, JJ., ...