SCOTT MULVANEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to leave to amend a postconviction motion alleging ineffective assistance for failure to call a witness, if the motion is missing a key allegation.
Defendant appealed the denial of his motion for postconviction relief, alleging ineffective assistance of counsel for failing to investigate and call …
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PER CURIAM.
Scott Mulvaney appeals a final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings on one of Mulva-ney’s claims.
In point four, Mulvaney alleged that trial counsel provided ineffective assistance because he did not investigate and call a potential witness to testify at trial. Mul-vaney was convicted of several offenses, including crimes stemming from his status as the driver of his vehicle. Mulvaney alleges that the witness would have admitted that he was the driver of Mulvaney’s vehicle on the date of the offenses.
The state argued that the claim was legally insufficient as Mulvaney did not allege that the witness was available to testify, that his testimony would have been favorable, or the nature of his testimony. Cunningham v. State, 748 So. 2d 328 (Fla. 4th DCA 1999). We agree that Mulvaney has failed to allege the witness’s availability.
During the pendency of this appeal the Florida Supreme Court decided Nelson v. State, 875 So. 2d 579, 582 (Fla.2004). Nelson holds that a proper claim challenging counsel’s failure to call a witness requires that the movant allege: the identity of the witness, the substance of the witness’s testimony, an explanation as to how the omission of this evidence prejudiced the outcome, and that the witness was available to testify. Nelson requires the trial court to permit leave to amend when a defendant’s motion is lacking a key allegation. Id. We reverse and remand to permit such amendment as outlined by Nelson. Thereafter, the trial court can revisit the legal sufficiency of the claim. See Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA, 2004).
GUNTHER, STONE and POLEN, JJ., concur.
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Spera v. State, 923 So. 2d 543 (Fla. 4th DCA 2006)…sufficient. In Frazier, this court concluded that Nelson required the trial court to, sua sponte, grant leave to the defendant to refile the motion if it does not contain all of the necessary allegations. 912 So. 2d at 56 (citing Mulvaney v. State, 885 So. 2d 1001 (Fla. 4th DCA 2004)). We, therefore, determined that the trial court erred in summarily denying the claim without, sua sponte, • providing the opportunity to amend. We note that in Bryant v. State, 901 So. 2d 810, 821 (Fla.2005), a death penalty ca…
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Frazier v. State, 912 So. 2d 54 (Fla. 4th DCA 2005)…Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998). We have recently interpreted Nelson to require the trial court to grant leave to the defendant to amend the motion if it does not contain all of the necessary allegations. See Mulvaney v. State, 885 So. 2d 1001 (Fla. 4th DCA 2004); see also Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA 2004); Chamberlain v. State, 880 So. 2d 796 (Fla. 5th DCA 2004). Because Frazier failed to include any of the key allegations mentioned above, the trial court was required…
Authorities Cited
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Lolita Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA 2004)
- Cunningham v. State, 748 So. 2d 328 (Fla. 4th DCA 1999)