          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,




      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).
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.




                                            2
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.”


                                               4
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.”


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