PHILLIP J. MCMILLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed summary denial of postconviction relief motion because the motion was not included in the appellate record, but allowed appellant to file a renewed motion within thirty days without it being deemed successive.
When the postconviction relief motion is not included in the appellate record, the appellate court must affirm the postconviction court's order but may allow the appellant to file a renewed motion within thirty days without it being considered successive.
[1] When a postconviction relief motion is not transmitted to the appellate court, the appellate record is incomplete and the appellate court must affirm the postconviction c…
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Join FLexlaw to unlock all legal intelligencePhillip J. McMillan appealed a postconviction court's order summarily denying his Rule 3.850 motion for postconviction relief. The motion itself was n…
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Phillip J. McMillan appeals the postcon-viction court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. McMillan’s motion is not included in the record on appeal, and the clerk of the circuit court cannot locate it.1 Moreover, in response to an order from this court, both the assistant state attorney and Mr. McMillan have indicated that they do not have a copy of the motion in their possession. As a result, the appellate record is incomplete. See Pugh v. State, 793 So.2d 116, 116 (Fla. 2d DCA 2001) (involving virtually identical circumstances and describing the appellate record as “incomplete” because the posteon-viction motion was not transmitted to this court). Because we cannot review the matter without an adequate record, we affirm the postconviction court’s order. Id. (citing Brown v. State, 790 So.2d 1133 (Fla. 2d DCA 2001)). However, our affir-mance is without prejudice to Mr. McMillan’s right to file a renewed motion raising the same grounds within thirty days from the date this opinion becomes final. Such motion shall not be considered successive.
Affirmed.
KELLY, MORRIS, and BADALAMENTI, JJ., Concur.
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Citator
Authorities Cited
- Brown v. State, 790 So. 2d 1133 (Fla. 2d DCA 2001)
- Acree v. Ben's Lawn Serv., Inc., 790 So. 2d 1133 (Fla. 2d DCA 2001)
- Pugh v. State, 793 So. 2d 116 (Fla. 2d DCA 2001)