         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


PATRICK MAXWELL,

             Appellant,

 v.                                                    Case No. 5D17-3624

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 11, 2018

3.850 Appeal from the Circuit
Court for Orange County,
Alan S. Apte, Judge.

Mary E. Fitzgibbons, Orlando,
for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Patrick Maxwell appeals the summary denial of Ground Two of his motion for

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because

the record does not conclusively refute Maxwell’s claim that counsel was ineffective for

failing to request an independent act jury instruction, we reverse the summary denial of

Ground Two and remand for attachment of portions of the record conclusively refuting
that 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))).

       REVERSED and REMANDED.

EVANDER, BERGER and EISNAUGLE, JJ., concur.




                                                 2
