NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

IRVING FLORES, DOC #C04283, ) ) Appellant, ) ) v. ) Case No. 2D16-1220 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 2, 2018.

Appeal from the Circuit Court for Hillsborough County; Lisa Campbell, Judge.

Irving Flores, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Irving Flores appeals the denial of his motion for postconviction relief.1 See Fla. R. Crim. P. 3.850. In the first ground of his motion, Mr. Flores sufficiently

1Mr.Flores raised nine grounds in his motion for postconviction relief. The postconviction court denied the second and fourth grounds after an evidentiary hearing, and summarily denied the remaining grounds. On appeal, Mr. Flores only challenges the postconviction court's summary denial of the first and eighth grounds. alleged that trial counsel was ineffective for failing to call a witness at trial. See Barthel v. State, 882 So. 2d 1054, 1055 (Fla. 2d DCA 2004). Because the record relied upon by the postconviction court did not conclusively refute Mr. Flores' claim, see Jones v. State, 71 So. 3d 193, 195 (Fla. 4th DCA 2011); Yarbrough v. State, 871 So. 2d 1026, 1031 (Fla. 1st DCA 2004), we reverse the summary denial of the first ground and remand for an evidentiary hearing, see Nolan v. State, 794 So. 2d 639, 641 (Fla. 2d DCA 2001). We affirm the order in all other respects.

Affirmed in part; reversed in part; remanded with instructions.

CASANUEVA, SLEET, and LUCAS, JJ., Concur.

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