McMillan v. State

192 So. 3d 1277, 2016 WL 3216560, 2016 Fla. App. LEXIS 8944

Opinion

PER CURIAM.

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.

1 . Due to the specificity of the postconviction court’s order, this court does not hold any reservations as to whether Mr. McMillan actually filed a motion with the postconviction court.