PERCIVAL C. FERRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant sought review of a trial court's summary denial of a Rule 3.850 postconviction relief motion raising four ineffective assistance of counsel claims. The court affirmed denial of three claims but reversed the summary denial of the initial claim regarding failure to object to a defective information, finding it facially insufficient and remanding to allow amendment.
The court reversed the summary denial of the initial claim because it was facially insufficient—appellant failed to allege circumstances preventing the state from filing an amended information. The court remanded to allow appellant to amend the claim within a reasonable period. The three remaining claims were affirmed without comment.
[1] A claim of ineffective assistance of counsel for failure to object to a defective information is facially insufficient if the movant fails to allege circumstances that wo…
[2] A facially insufficient claim in a motion for postconviction relief should be reversed and remanded to allow the movant an opportunity to amend.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellant claims that his attorney was ineffective in failing to object to a defective information. Specifically, he argues that his information is vague and fails to set forth the elements of his crime.”
Establishes the core claim being reviewed—ineffective assistance for failure to challenge the information
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Join FLexlaw to unlock all legal intelligenceAppellant Ferris was convicted and filed a postconviction motion for relief under Florida Rule of Criminal Procedure 3.850. He claimed his attorney wa…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant seeks review of the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he raises four claims. We affirm the denial of appellant’s final three claims without further comment. However, because appellant’s initial claim is facially insufficient, we reverse the trial court’s summary denial of the claim in order to provide appellant the opportunity to amend.
Appellant claims that his attorney was ineffective in failing to object to a defective information. Specifically, he argues that his information is vague and fails to set forth the elements of his crime. His claim is facially insufficient in that he fails to allege any circumstances under which the state would have been unable to file an amended information. See Sampson v. State, 793 So. 2d 149 (Fla. 2d DCA 2001) (holding that a claim of ineffective assistance of counsel for failure to object to a defective information was facially insufficient in light of appellant’s failure to allege any circumstances which would have prevented the state from filing an amended information). In accordance with Spera v. State, 971 So. 2d 754 (Fla.2007), we reverse and remand for the trial court to allow appellant the opportunity to amend his facially insufficient claim within a reasonable period of time. The trial court did not deny the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera to this issue. Cf. Watson v. State, 975 So. 2d 572 (Fla. 1st DCA 2008) (holding that an appellant who seeks review of a denial of rule 3.850 motion and files an initial brief without addressing Spera, waives any claim he may have had under Spera).
AFFIRMED in part, and REVERSED and REMANDED, in part.
KAHN, VAN NORTWICK and PADOVANO, JJ., concur.
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Percival Charles Ferris, Jr. v. State, 100 So. 3d 142 (Fla. 1st DCA 2012)…continue for many years to come. . State v. Spencer, 751 So. 2d 47 (Fla.1999). . See 1D07-1280, 1D08-437, 1D08-5991, 1D09-4231, 1D10-2110, 1D10-2946, 1D10-3773, ID 11-390, 1D11-2116, 1D12-725, and 1D12-1581. . I recognize that in Ferris v. State, 996 So. 2d 228 (Fla. 1st DCA 2008) (Case No. 1D08-437), we reversed the summaiy denial of one of the five claims in Appellant's original post-conviction motion and remanded with directions that Appellant be given an opportunity to amend the claim. However, on rema…
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Drakus v. State, 219 So. 3d 979 (Fla. 1st DCA 2017)…initial rule 3.850 motion alleging ineffective assistance of ■counsel is found to be legally insufficient, the defendant should be given at least one opportunity to amend the motion. Spera v. State, 971 So. 2d 754, 761 (Fla. 2007); Ferris v. State, 996 So. 2d 228, 229 (Fla. 1st DCA 2008). As such, we reverse that portion of the order that denied ground 1 as being refuted by the record with instructions that the postconviction court allow appellant to amend ground 1 to state a facially sufficient claim withi…
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Pantoja v. State, 226 So. 3d 1043 (Fla. 1st DCA 2017)…ast one opportunity to amend the motion). Because the post-conviction court did not deny relief on Ground 1 based upon facial insufficiency, Appellant’s failure to raise Spera on appeal does not foreclose reversal on this basis. See Ferris v. State, 996 So. 2d 228, 229 (Fla. 1st DCA 2008) (“The trial court did not deny the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera to this issue.”). Turning to Ground 3, in which Appellant all…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Watson v. State, 975 So. 2d 572 (Fla. 1st DCA 2008)
- Sampson v. State, 793 So. 2d 149 (Fla. 2d DCA 2001)