         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
CHRISTOPHER BOATWRIGHT,

             Appellant,

 v.                                             Case No. 5D17-1849

STATE OF FLORIDA,

             Appellee.

________________________________/

Decision filed November 3, 2017

3.850 Appeal from the Circuit Court
for Orange County,
Dan Traver, Judge.

Christopher Boatwright, Raiford, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.


      AFFIRMED.


BERGER and EISNAUGLE, JJ., concur.
LAMBERT, J., concurs, with opinion.
LAMBERT, J., concurring.                                                     5D17-1849


       I concur with the affirmance of the postconviction court’s summary denial of

Appellant’s Florida Rule of Criminal Procedure 3.850 motion for postconviction relief

because the lower court reached the right result, albeit for the wrong reason. Following

a bench trial, Appellant was found to have willfully and materially violated his probation

by committing a new criminal offense. The trial court revoked Appellant’s probation and

sentenced him to serve ten years in prison. Appellant timely moved for a new trial, and

after his motion was denied, he appealed his judgment and sentence. Earlier this year,

this court affirmed Appellant’s judgment and sentence without opinion. Boatwright v.

State, 222 So. 3d 1226 (Fla. 5th DCA 2017).

       Approximately three months after the mandate issued on his direct appeal,

Appellant filed the instant rule 3.850 motion, raising four grounds for relief. In summarily

denying the motion, the postconviction court first acknowledged in its order that Appellant

had appealed his judgment and sentence and that our court denied him relief in January

of this year. However, the court then inconsistently wrote that because Appellant’s

postconviction claims were related to the violation of probation proceedings held on

November 3, 2014, and since Appellant “did not appeal,” Appellant’s motion was untimely

for not being filed within two years of the judgment and sentence becoming final as

required by rule 3.850(b).

       Appellant’s motion was timely because it was filed within two years of this court’s

mandate on direct appeal. See Hall v. State, 86 So. 3d 590, 590 (Fla. 5th DCA 2012)

(citing Rosado v. State, 654 So. 2d 623 (Fla. 5th DCA 1995)). Typically, we would reverse

the order on appeal and remand for the lower court to consider the merits of the motion.

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However, to do so here would serve no purpose because, based on our record, the

summary denial of Appellant’s motion is appropriate. See Miller v. State, 829 So. 2d 321,

322 (Fla. 5th DCA 2002) (affirming an order summarily denying a defendant’s rule 3.850

motion under the “tipsy coachman” doctrine because the trial court properly denied relief,

though not for the correct reason). Three of Appellant’s four grounds for relief asserted

in his motion are based on trial court error, which is not cognizable in a rule 3.850 motion

for postconviction relief. See Swanson v. State, 984 So. 2d 629, 629 (Fla. 1st DCA 2008)

(citing Hodges v. State, 885 So. 2d 338, 366 (Fla. 2004); Gorham v. State, 521 So. 2d

1067, 1070 (Fla. 1988)).

       In his remaining claim, Appellant argues that his trial counsel was ineffective in

failing to object or to otherwise preclude the trial court from proceeding with his violation

of probation trial prior to the resolution of the separate case on the new criminal offense

that constituted the violation of his probation. This claim is meritless. An attorney is not

ineffective for failing to insure that a defendant’s probation violation hearing is held after

any trial or plea on his new law violations because a defendant has no right to insist that

his cases be heard in any particular order. Lister v. State, 925 So. 2d 400, 402 (Fla. 5th

DCA 2006). This is a matter within the sound discretion of the trial court. Id.




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