RALPH Z. NAVA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the motion for post-conviction relief without conducting an evidentiary hearing or attaching record excerpts.
Appellant sought post-conviction relief alleging ineffective assistance of counsel due to discovery violations and failure to preserve issues. The tri…
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PER CURIAM.
We reverse an order denying Appellant’s motion for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure. No evidentiary hearing was conducted, nor did the court attach record excerpts to its order, on Appellant’s claim of ineffective assistance of counsel. The motion alleges trial counsel’s failure to comply with discovery rules resulting in key defense witnesses being barred from testifying and a failure to preserve that issue for review in the direct appeal. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Davis v. State, 648 So. 2d 1249, 1250 (Fla. 4th DCA 1995); Shelton v. State, 631 So. 2d 370 (Fla. 4th DCA 1994).
We reject the state’s assertion that the motion was not properly sworn. The record reflects that the motion itself was properly sworn to and that some additional matters referred to in an accompanying memorandum, sworn to only as to the best of Appellant’s knowledge, were incorporated by reference into the properly sworn motion. See Randall v. State, 555 So. 2d 417 (Fla. 4th DCA 1989), rev. denied, 564 So. 2d 1087 (Fla.1990). Even if the facts in the memorandum are deemed not sworn, Appellant sought leave before the trial court to amend, which should have been freely granted. E.g., Anderson v. State, 627 So. 2d 1170, 1171 (Fla.1993); Scott v. State, 464 So. 2d 1171, 1172 (Fla.1985).
Although not addressed by the state on appeal, we note that the state’s contention in the trial court that the motion was untimely is incorrect. The 3.850 motion was filed within two years of the termination, by denial of a petition for writ of certiorari in the supreme court, of Appellant’s plenary appeal. See Huff v. State, 569 So. 2d 1247, 1250 (Fla.1990).
STONE, POLEN and PARIENTE, SJJ., concur.
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Roan Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998)…nstrates that at the hearing counsel moved to amend the motion to assert the court’s failure to warn of deportation consequences. Leave to amend a 3.850 motion should be freely granted. Reed v. State, 640 So. 2d 1094, 1098 (Fla.1994); Nava v. State, 659 So. 2d 1314 (Fla. 4th DCA 1995). Therefore, we reverse the order denying Prieto’s 3.850 motion and remand with leave for Prieto to amend his motion. As guidance to Prieto and others who would assert similar claims, we point out that to set aside a plea for fai…
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Beaty v. State, 701 So. 2d 856 (Fla. 1997)…GRIMES, Justice. We review Beaty v. State, 684 So. 2d 206 (Fla. 2d DCA 1996), because of its direct conflict with Nava v. State, 659 So. 2d 1314 (Fla. 4th DCA 1995). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. Beaty was convicted of first-degree murder and sentenced to life imprisonment. On June 2, 1993, the Second District Court of Appeal issued a per…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Huff v. State, 569 So. 2d 1247 (Fla. 1990)
- Anderson v. State, 627 So. 2d 1170 (Fla. 1993)
- Scott v. State, 464 So. 2d 1171 (Fla. 1985)
- Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995)
- Randall v. State, 555 So. 2d 417 (Fla. 4th DCA 1989)
- Dawson Eugene Havis v. State of Fla. & George L. Carlisle, 555 So. 2d 417 (Fla. 1st DCA 1989)
- Shelton v. State, 631 So. 2d 370 (Fla. 4th DCA 1994)