STEVEN L. BURNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's addendum to his postconviction motion should have been denied without prejudice, allowing him an opportunity to file a facially sufficient motion.
[1] A postconviction movant is permitted to remedy a facially insufficient claim by filing a facially sufficient motion without being deemed successive, provided it is filed…
[2] A court errs by failing to deny an addendum to a postconviction motion without prejudice to refile a facially sufficient amendment when the addendum is facially insuffici…
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Join FLexlaw to unlock all legal intelligenceDefendant sought postconviction relief, filing an initial motion and later an addendum. The addendum was denied as facially insufficient. Defendant so…
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PER CURIAM.
This is an appeal from the denial of a motion for rehearing on the defendant’s motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Defendant filed an initial motion raising two grounds of ineffective assistance of counsel, followed soon thereafter by a motion for leave to file an addendum to the initial motion raising a third claim of ineffective assistance of counsel. The grounds of the initial motion were denied on the merits, and the third ground, raised in the addendum, was denied as facially insufficient for lacking an oath pursuant to rule 3.850(c).
The defendant sought rehearing, arguing that his addendum should have been denied without prejudice to file a facially sufficient addendum, as his initial motion had not yet been ruled upon, and the addendum was timely filed within the two-year time limit provided in rule 3.850. The court again denied the grounds raised in his initial motion, but did not address the addendum.
A movant whose postconviction claim has been denied as facially insufficient is allowed an opportunity to remedy such through a facially sufficient motion without being deemed successive if it is done within the two-year limit provided in rule 3.850. See Spera v. State, 971 So. 2d 754, 758-59 (Fla.2007) (citing McCrae v. State, 437 So. 2d 1388, 1390 (Fla.1983)). The defendant argued in his motion for rehearing that his addendum should have been denied without prejudice to refile a facially sufficient amendment. The court did not address the issue of sufficiency in its order denying rehearing and erred in failing to initially deny the addendum without prejudice to file a facially sufficient amendment. As such, as to the addendum, the denial is reversed and remanded to permit the defendant to file a facially sufficient motion within thirty days from the rendition of this opinion. The portion of the order denying the two grounds raised in the initial motion is affirmed.
SHAHOOD, C.J., WARNER and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)