DONALD LEGRANDE v. STATE OF FLORIDA (2016)

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Donald R. LeGrande appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds One, Four, and Five. However, because the record does not conclusively refute LeGrande's claim that counsel was ineffective for failing to file a motion for new trial and failing to request a limiting jury instruction indicating that the “principals” instruction did not apply to conspiracy, we reverse the summary denial of Grounds Two and Three and remand for attachment of portions of the record conclusively refuting those claims 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))). As two of LeGrande's claims require reversal for attachment of the record or evidentiary hearing, we also remand Ground Six, which alleges cumulative error, for further consideration.

AFFIRMED in part, REVERSED in part, and REMANDED.

PER CURIAM.

PALMER, TORPY and BERGER, JJ., concur.