JULIAN C. MCINTOSH
v.
STATE
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A defendant is entitled to an evidentiary hearing on an ineffective assistance of counsel claim where counsel failed to call a witness whose testimony could have been material to the defense, unless the trial court can attach records conclusively refuting the claim.
[1] A defendant seeking an evidentiary hearing on an ineffective assistance of counsel claim based on counsel's failure to call a witness is entitled to such a hearing if the…
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Join FLexlaw to unlock all legal intelligence“we conclude that Appellant is entitled to an evidentiary hearing on ground one unless the trial court on remand is able to attach records conclusively refuting Appellant's claim.”
Court's determination regarding McIntosh's entitlement to a hearing on his ineffective assistance claim
McIntosh was charged with aggravated assault and firearm possession by a convicted felon. He was acquitted of aggravated assault but convicted of fire…
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PER CURIAM. Appellant, Julian Christian McIntosh, appeals the summary denial of his Florida
Rule of Criminal Procedure 3.850 post-conviction motion alleging six claims of ineffective assistance of counsel. We reverse the portion of the order summarily denying ground one and otherwise affirm without discussion.
Appellant was charged with three counts: aggravated assault of Jose Barcia,
aggravated assault of Brittany DeLemos,1 and possession of a firearm by a convicted felon. Prior to trial, the State nolle prossed the charge of aggravated assault against
Brittany DeLemos, and Appellant was acquitted in a bifurcated jury trial of aggravated assault against Jose Barcia. He was convicted as charged, however, following a separate trial on the count for possession of a firearm by a convicted felon.
In ground one, Appellant alleges that his counsel was ineffective for failing to call
Brittany DeLemos at the second trial, claiming that she would have testified that he did not possess a firearm. Although Ms. DeLemos’s proffered testimony could have been impeached with a prior inconsistent statement, Appellant alleges that she would have explained at trial that she lied in her 911 call because, at the time, she was “filled with emotions” and “was desperate” to have Appellant out of her house.2 Given our record,
we conclude that Appellant is entitled to an evidentiary hearing on ground one unless the trial court on remand is able to attach records conclusively refuting Appellant’s claim.
AFFIRMED in part; REVERSED in part; and REMANDED. ORFINGER, TORPY and EISNAUGLE, JJ., concur.