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Michael Webb v. State
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
MICHAEL WEBB,
Appellant, v. Case No. 5D16-3139
STATE OF FLORIDA,
Appellee. ________________________________/ Opinion filed January 20, 2017
3.850 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.
Michael Webb, Crawfordville, pro se. No Appearance for Appellee.
PER CURIAM.
Michael Webb appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two through Ten. 1 However, because the record does not conclusively refute Webb’s claims that counsel was ineffective for advising him to reject a plea offer, *2 we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing. See Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So. 2d 726 (Fla. 1996))).
AFFIRMED in part, REVERSED in part, and REMANDED.
BERGER and WALLIS, JJ., concur. LAMBERT, J., concurs specially, with opinion.
abuse of the procedure. 2 If Webb’s first or second rule 3.850 motion had been denied on the merits, the postconviction court could have summarily dismissed this present motion, provided that it attached to its order copies of its prior denial order(s) on the merits and Webb’s earlier postconviction motion(s). See Fla. R. Crim. P. 3.850(h)(2); Meyer v. State, 69 So. 3d 1037, 1038 (Fla. 5th DCA 2011) (reversing the summary denial of a successive rule 3.850 motion for trial court’s failure to attach to the denial order copies of the previous motion and denial order to demonstrate the successiveness of the motion). I see no reason why the postconviction court, on remand, could not summarily dismiss this remaining ground, provided again that at least one of Webb’s prior rule 3.850 motions was denied on the merits and the requisite copies of the court record are attached to the order.
2 Webb, who is presently in the custody of the Florida Department of Corrections, claimed that he was misadvised by “institution law clerks” that the “trial court errors” raised in his earlier motions were cognizable in postconviction proceedings and that Webb could “later amend and supplement further claims at any time.”
abuse of the procedure. 2 If Webb’s first or second rule 3.850 motion had been denied on the merits, the postconviction court could have summarily dismissed this present motion, provided that it attached to its order copies of its prior denial order(s) on the merits and Webb’s earlier postconviction motion(s). See Fla. R. Crim. P. 3.850(h)(2); Meyer v. State, 69 So. 3d 1037, 1038 (Fla. 5th DCA 2011) (reversing the summary denial of a successive rule 3.850 motion for trial court’s failure to attach to the denial order copies of the previous motion and denial order to demonstrate the successiveness of the motion). I see no reason why the postconviction court, on remand, could not summarily dismiss this remaining ground, provided again that at least one of Webb’s prior rule 3.850 motions was denied on the merits and the requisite copies of the court record are attached to the order.
2 Webb, who is presently in the custody of the Florida Department of Corrections, claimed that he was misadvised by “institution law clerks” that the “trial court errors” raised in his earlier motions were cognizable in postconviction proceedings and that Webb could “later amend and supplement further claims at any time.”
Footnotes
[1] We note that a trial court may also dismiss a postconviction motion raising new or different claims for relief as successive if it finds there was “no good cause for the failure of the defendant . . . to have asserted those grounds in a prior motion.” See Fla. R. Crim. P. 3.850(h)(2).