JESSIE JAMES MILTON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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PER CURIAM.
We have jurisdiction in this case based upon article V, section 3(b)(3), of the Florida Constitution. We review only the issue as to whether the trial court erred in summarily denying petitioner relief based upon his claim that counsel’s failure to call a witness was ineffective assistance. In accord with our decision in Nelson v. State, 875 So. 2d 579 (Fla.2004), we quash the decision of the district court, Milton v. State, 872 So. 2d 965 (Fla. 5th DCA 2004), with respect to its affirmance of the trial court’s summary denial of petitioner’s claim for relief. We remand the case to the district court and direct that the case be remanded to the trial court so that petitioner may be permitted to amend his claim for relief within a reasonable time to be specified by the trial court.
It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur. LEWIS, J., concurs in result only with an opinion.
LEWIS, J.,
concurring in result only.
I concur only in the result here that will afford the Petitioner the opportunity to return to the trial court to have this matter determined on the merits rather than resolving the dispute upon the imposition of unnecessary artificial technical words of pleading. I continue to adhere to the views I expressed in the dissent in Nelson v. State, 875 So. 2d 579 (Fla.2004).
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Citator
Cited By
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Spera v. State, 923 So. 2d 543 (Fla. 4th DCA 2006)…elief from an essentially technical omission to the point where a movant who wholly fails to present sufficient facts as to any aspect of a claim of prejudice should, automatically, be granted leave to amend the motion. Spera cites Milton v. State, 897 So. 2d 1268 (Fla.2005), for the proposition that it is always proper to allow amendments to a motion where the claim of ineffective assistance of counsel (for failure to call witnesses) is procedurally deficient. The Milton majority does not explain the particu…
Authorities Cited
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Milton v. State, 872 So. 2d 965 (Fla. 5th DCA 2004)