LARRY R. BEARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A motion to amend a postconviction relief motion can be allowed if filed within the time limit and before the trial court rules on the original motion. The dismissal of a successive motion is moot if the original motion can be amended to include those issues.
Appellant sought postconviction relief and moved to amend his motion within the time limit. The trial court denied relief on the original grounds with…
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BLUE, Chief Judge.
In case 2D02-1649, Larry R. Beard appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part. In ease 2D02-2277, he also appeals the dismissal of a second rule 3.850 motion as successive. We dismiss this appeal as moot.
Beard claimed four grounds for postcon-viction relief. Then he moved to amend his rule 3.850 motion within the two-year time limit and prior to the trial court’s ruling on the original motion. The trial court properly denied relief on the original four grounds, and we affirm that denial without comment. But the trial court ruled on these original grounds without ever ruling on Beard’s motion to amend. When Beard raised this issue in his motion for rehearing, the trial court denied the motion for rehearing without explanation.
New issues may be added to a rule 3.850 motion if the trial court has not yet ruled on the motion and the amendment is filed within the two-year time limit. Gaskin v. State, 737 So. 2d 509 (Fla.1999); Harris v. State, 27 Fla. L. Weekly D954, 2002 WL 727162 (Fla. 2d DCA Apr.26, 2002). Since Beard’s motion met these requirements, the trial court should have allowed the amendment. Therefore, we reverse in part. On remand, Beard must be allowed to amend his original rule 3.850 motion, and the trial court must rule on these amendments without denying them as successive.
The dismissal of Beard’s second rule 3.850 motion as successive is now moot since Beard may raise any of these issues when he amends the original rule 3.850 motion. Case 2D02-1649 is affirmed in part, reversed in part, and remanded; case 2D02-2277 is dismissed as moot.
FULMER and DAVIS, JJ., concur.
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Ramirez v. State, 854 So. 2d 805 (Fla. 2d DCA 2003)…to a rule 3.850 motion was filed before the termination of the statutory time limit and before the trial court had ruled on the original motion, it was error for the trial court not to consider the merits of the new allegations. See Beard v. State, 827 So. 2d 1021, 1021 (Fla. 2d DCA 2002); Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002). The present case is governed by Gaskins because, although an order had been entered denying Ramirez’s motion in part, the trial court had not made a final determination…
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Kline v. State, 858 So. 2d 1257 (Fla. 1st DCA 2003)…509, 518 (Fla.1999). Similarly, when a defendant files a motion requesting leave to amend before the trial court rules and before the limitations period expires, the trial court must allow the amendment prior to ruling on the motion. Beard v. State, 827 So. 2d 1021 (Fla. 2d DCA 2002). Accordingly, we reverse the trial court’s denial of Appellant’s original motion. On remand, Appellant shall be allowed to amend his original motion and the trial court should rule on the amended [*1258] motion without reference t…
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McABEE v. State, 873 So. 2d 545 (Fla. 2d DCA 2004)…olding trial court erred in not considering merits of new allegations in rule 3.850 amendment, even though order denying original motion in part had been entered, where court had not entered final order disposing of original motion); Beard v. State, 827 So. 2d 1021, 1021 (Fla. 2d DCA 2002); Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Harris v. State, 826 So. 2d 340, 341 (Fla. 2d DCA 2002) (holding failure to rule on merits of supplement was error). Accordingly, we affirm without further discussion t…
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- Gaskin v. State, 737 So. 2d 509 (Fla. 1999)