               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT



JAMES LeCLAIRE,                            )
                                           )
              Appellant,                   )
                                           )
v.                                         )         Case No. 2D17-934
                                           )
STATE OF FLORIDA,                          )
                                           )
              Appellee.                    )
                                           )

Opinion filed May 25, 2018.

Appeal from the Circuit Court for Hendry
County; James D. Sloan, Judge.

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




                                            -2-
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 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




                                           -3-
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.").

              Further, 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.

              We 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 evidentiary hearing. Upon resolution of

those claims, the court shall address the cumulative error claim.

              Affirmed in part; reversed in part; remanded with instructions.



CASANUEVA, VILLANTI, and BLACK, JJ., Concur.




                                             -4-
