MCINTOSH v. STATE (2018)

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.

FOOTNOTES

1.   The record indicates that Brittany DeLemos is also known as Brittany McIntosh.

2.   Appellant attached an affidavit signed by Brittany DeLemos that is consistent with his allegations.

PER CURIAM.

ORFINGER, TORPY and EISNAUGLE, JJ., concur.