         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


ROBERT HUGHES HARRIS,

              Appellant,

 v.                                                       Case No. 5D17-3587

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed March 23, 2018

3.850 Appeal from the Circuit Court
for Orange County,
Leticia J. Marques, Judge.

Robert Hughes Harris, Raiford, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

       Robert Harris appeals the summary denial of his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two,

Four, Five, Six, Seven, and Eight. However, because the record does not conclusively

refute Harris’s sufficiently pled claim that counsel was ineffective for failing to ask for an

alibi instruction, 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))).       We also reverse the summary denial of Ground Three,

regarding counsel’s alleged misleading advice on Harris’s right to testify, and remand for

an evidentiary hearing.      Simon v. State, 47 So. 3d 883, 886 (Fla. 3d DCA 2010)

(concluding evidentiary hearing is usually necessary to determine whether counsel’s

advice not to testify is deficient).

       AFFIRMED in part, REVERSED in part, and REMANDED.


BERGER, LAMBERT and EISNAUGLE, JJ., concur




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