McMillan v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
PHILLIP J. McMILLAN, )
)
Appellant, )
)
v. ) Case No. 2D15-4253
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 10, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Michael E. Raiden, Judge.
Phillip J. McMillan, pro se.
PER CURIAM.
Phillip J. McMillan appeals the postconviction 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
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.
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 postconviction 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 affirmance 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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