STATE OF FLORIDA, APPELLANT,
v.
RICHARD SCHIANO, APPELLEE
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Florida appeals a trial court's order granting Schiano's post-conviction relief motion under Florida Rule of Criminal Procedure 3.850 without holding a hearing or providing notice to the state. The appellate court reverses, holding that Rule 3.850(d) does not permit summary granting of such motions and requires the state be given an opportunity to respond before relief is granted.
A trial court may not summarily grant a post-conviction relief motion. Rule 3.850(d) permits only summary denial (if the motion is legally insufficient or the records conclusively show no entitlement to relief), and when summary denial is inappropriate, the rule requires the court to order the state to file an answer or response before making any disposition adverse to the state's interests.
[1] A trial court cannot summarily grant a motion for post-conviction relief without notice to the state.
[2] Florida Rule of Criminal Procedure 3.850(d) requires a trial court to order the state to file an answer or take other appropriate action when summary denial of a post-con…
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Join FLexlaw to unlock all legal intelligence“Rule 3.850(d) does not permit the trial court to summarily grant a motion for post-conviction relief.”
States the core legal principle that trial courts lack authority to grant such motions without proper procedure.
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Join FLexlaw to unlock all legal intelligenceSchiano entered guilty pleas on July 15, 1996. On August 26, 1996, he filed a post-conviction relief motion under Rule 3.850. Without holding a hearin…
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PER CURIAM.
The state appeals an order granting appel-lee, Sehiano’s motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. Schiano entered pleas on July 15, 1996. On August 26, 1996, he moved for post-conviction relief. Without holding a hearing on the motion or giving notice to the state, the trial court granted the motion on September 8, 1996, vacating the pleas, judgment and sentence and reinstating the not guilty plea.
Rule 3.850(d) does not permit the trial court to summarily grant a motion for post-conviction relief. Such a motion may be summarily denied if the motion is legally insufficient on its face or “if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.” Id. Where summary denial is not appropriate, the rule provides that the court shall order the state attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.
Fla. R.Crim. P. 3.850(d). We disagree with Schiano’s contention that the language “or to take such other action as the judge deems appropriate” authorizes the trial judge to dispense with the procedural requirement of giving notice to the state before entering an order adverse to the state’s interests. The purpose of the quoted portion of Rule 3.850(d) is to obtain some type of response from the state to frame the issues in dispute. The part of the rule Schiano relies on gives the trial judge the flexibility to use some other method, such as a hearing, to fix the issues that require judicial decision. Once the issues are so identified, the judge can set an evidentiary hearing, if required, or “make appropriate disposition of the motion.” Id. At least some of the issues raised by Schi-ano’s motion typically require an evidentiary hearing. See Sanchez v. State, 683 So. 2d 606 (Fla. 3d DCA 1996); State v. Moses, 682 So. 2d 595, 596 (Fla. 3d DCA 1996), review denied, 689 So. 2d 1070 (Fla.1997).
On remand, Schiano should be given leave to amend his motion to correct the pleading deficiencies raised by the state. See Panno v. State, 517 So. 2d 129, 131 (Fla. 4th DCA 1987), review denied, 525 So. 2d 880 (Fla. 1988); Richardson v. State, 677 So. 2d 43, 44 (Fla. 1st DCA 1996); State v. Oisorio, 657 So. 2d 4, 5 (Fla. 3d DCA 1995), aff'd, 676 So. 2d 1363 (Fla.1996).
REVERSED AND REMANDED.
WARNER, SHAHOOD and GROSS, JJ., concur.
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State v. Huby, 58 So. 3d 343 (Fla. 4th DCA 2011)…an evidentiary hearing on the amended motion, or giving notice and an opportunity to the State to respond to it, the trial court granted the motion, vacating Ruby’s open pleas and sentences for violation of probation. As we said in State v. Schiano, 696 So. 2d 531 (Fla. 4th DCA 1997), rule 3.850(d) does not authorize the trial court to summarily grant a motion for post conviction relief. We reverse and remand for further proceedings on this amended motion, to which the State should be permitted to respond, an…
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State v. Pierre-John Lundy, 211 So. 3d 135 (Fla. 4th DCA 2017)…iously been afforded an evidentiary hearing. Fla. R. Crim. P. 3.850(f)(6) (second emphasis added). Of important note, the rule allows only summary denials and a trial court may not summarily grant a post-conviction relief motion. State v. Schiano, 696 So. 2d 531, 531 (Fla. 4th DCA 1997).1 Rule 3.850 requires the court to order the state to respond in order “to frame the issues in dispute.” Id. Once the issues are clearly identified, “the judge can set an evidentia-ry hearing, if required.” Id. Indeed, the…
Authorities Cited
- Oisorio v. State, 676 So. 2d 1363 (Fla. 1996)
- State v. Moses, 682 So. 2d 595 (Fla. 3d DCA 1996)
- Panno v. State, 517 So. 2d 129 (Fla. 4th DCA 1987)
- Richardson v. State, 677 So. 2d 43 (Fla. 1st DCA 1996)
- Bobo v. Caterair Int'l Corp., 657 So. 2d 4 (Fla. 3d DCA 1995)
- State v. Oisorio, 657 So. 2d 4 (Fla. 3d DCA 1995)
- Octavio Sanchez v. State, 683 So. 2d 606 (Fla. 3d DCA 1996)