ROBERT D. ASWELL
v.
STATE OF FLORIDA
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The appellate court reversed the lower court's summary denial of a motion for relief from judgment. The lower court erred by dismissing the motion outright when it should have treated it as a motion filed under the correct rule and allowed the movant an opportunity to amend.
Yes, the postconviction court erred by summarily denying the motion. The court should have treated the motion as filed under the correct rule (Fla. R. Crim. P. 3.850) and, if insufficient, allowed Aswell an opportunity to amend.
[1] When a postconviction motion for relief from judgment is filed under an inapplicable rule of procedure, the trial court must treat it as filed under the correct rule rath…
[2] A trial court abuses its discretion by summarily denying a rule 3.850 motion as facially insufficient without first striking it and granting the defendant an opportunity…
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Join FLexlaw to unlock all legal intelligence“Although the motion was filed under the wrong rule, the court erred by denying the motion outright.”
Establishes the appellate court's finding of error by the lower court.
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Join FLexlaw to unlock all legal intelligenceRobert D. Aswell filed a motion for relief from judgment, stating it was pursuant to Florida Rule of Civil Procedure 1.540(b). The postconviction cour…
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Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Kemba Johnson Lewis, Judge. Robert D. Aswell, pro se. NORTHCUTT, Judge. Robert D. Aswell challenges the postconviction court's summary denial of his motion for relief from judgment, which stated that it was filed pursuant to Florida Rule of Civil Procedure 1.540(b). Although the motion was filed under the wrong rule, the court erred by denying the motion outright. Accordingly, we reverse. In his motion, Aswell raised three claims generally seeking collateral relief. The postconviction court determined that it was unable to address Aswell's motion because it "failed to cite to any rules of criminal procedure or statutes, which might
- 2 - support the relief Defendant seeks." The court reasoned that "[a]s such, no relief is warranted." This was incorrect. Addressing a materially similar situation, the Florida Supreme Court has determined that the correct approach is to treat the motion as though it were filed under the correct rule. By its own terms, rule 1.540 applies only to civil causes, not to collateral claims associated with a criminal conviction.
However, the court below should have treated this as a 3.850 motion, which would not be barred as untimely or successive if "facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1); see also art. V, § 2(a), Fla. Const. ("no cause shall be dismissed because an improper remedy has been sought"). Steinhorst v. State, 636 So. 2d 498, 500 (Fla. 1994).
Thus, the court below should have treated Aswell's motion for relief from judgment as a rule 3.850 motion. To the extent that Aswell failed to allege facially sufficient claims under that rule, the court should have stricken the motion and granted him an opportunity to amend. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) ("[W]hen a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.").
Therefore, we reverse and remand for the postconviction court to treat Aswell's rule 1.540(b) motion as a rule 3.850 motion. If necessary, the court shall strike the motion as insufficient and grant Aswell an opportunity to file a facially sufficient motion if such a motion can be filed in good faith.
- 3 - Affirmed in part, reversed in part, and remanded. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.