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

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


VINCENTE CARBAJAL, a/k/a       )
VINCENTE EJIAS REYES-CARBAJAL, )
                               )
          Appellant,           )
                               )
v.                             )                 Case No. 2D14-1756
                               )
STATE OF FLORIDA,              )
                               )
          Appellee.            )
                               )

Opinion filed October 10, 2014.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Michelle Sisco,
Judge.


VILLANTI, Judge.


              Vincente Carbajal appeals an order dismissing as successive the second

of two timely filed motions for postconviction relief. Some of Carbajal's allegations are

ambiguous or facially insufficient; consequently, the files and records accompanying the

postconviction court's dismissal order do not fully support a conclusion that all of his

claims are successive. Because the postconviction court should have given Carbajal

one opportunity to amend his motion before dismissing it as successive, we affirm in

part, reverse in part, and remand for further proceedings.
              In 2011, Carbajal entered a negotiated guilty plea to two counts of armed

kidnapping, one count of robbery with a firearm or deadly weapon, and one count of

carjacking with a firearm. He was sentenced to a combination of sentences totaling fifty

years in prison. This court affirmed Carbajal's convictions and sentences on direct

appeal. See Reyes-Carbajal v. State, 112 So. 3d 108 (Fla. 2d DCA 2013) (table

decision). Mandate issued on May 7, 2013.

              On June 2, 2013, Carbajal filed a timely motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised three claims

regarding the filing of the information. The postconviction court found the claims to be

frivolous and denied the motion on July 11, 2013.

              Subsequently, Carbajal filed a second rule 3.850 motion on January 30,

2014, raising eight claims for relief. Four of these claims made allegations of ineffective

assistance of counsel; three claims (claims one, two, and three) made allegations

concerning newly discovered evidence in the form of DNA test results; and one claim

made an allegation of cumulative error. The three claims concerning the newly

discovered DNA evidence did not contain an allegation as to when Carbajal learned of

the existence of this evidence. Nevertheless, the postconviction court dismissed this

motion in its entirety as successive.

              Rule 3.850(h)(2) permits a court to dismiss a postconviction motion 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." In dismissing the motion, the

postconviction court's order must be accompanied by "that portion of the files and

records necessary to support the court's ruling." Id. We recognize that "[t]he burden is




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on the movant to show extraordinary circumstances and good cause for having failed to

raise the 'new' claim in the prior motion." Morris v. State, 134 So. 3d 1066, 1067-68

(Fla. 4th DCA 2013). But if a movant's allegations are facially insufficient in this regard,

the postconviction court may not simply deny or dismiss the motion. Instead, the court

must afford the movant an opportunity to correct the deficiencies if he or she can do so

in good faith. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face,

and the motion is timely filed under this rule, the court shall enter a nonfinal,

nonappealable order allowing the defendant 60 days to amend the motion."); Spera v.

State, 971 So. 2d 754, 761 (Fla. 2007).

              Here, Carbajal did not allege in his second motion exactly when he

became aware of the allegedly new DNA evidence, other than that it was "subsequent

to the plea agreement, judgment and sentence." Without knowing when Carbajal

learned of this allegedly new evidence, it was simply not possible for the postconviction

court to determine that the motion was truly successive under rule 3.850(h)(2).

Accordingly, we reverse the dismissal of claims one, two, and three of Carbajal's

second motion for postconviction relief and remand for the postconviction court to give

him an opportunity to amend those claims with a good faith allegation concerning when

and how he learned of the existence of the allegedly exculpatory DNA test results. In all

other respects, we affirm the dismissal of the motion as successive.

              Affirmed in part; reversed in part; remanded.

KHOUZAM and BLACK, JJ., Concur.




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