KELLY ROBIN DINKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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GRIFFIN, J.
Appellant, Kelly Robin Dinkins, appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We affirm the appealed order, except for ground 2. Appellant contends that trial counsel was ineffective for failing to seek relief when he became aware that a juror was sleeping during important portions of the trial. The motion and supporting memorandum were rejected as legally insufficient by the trial court and, indeed, these documents lack the specificity that has emerged in this appeal. In light of the Supreme Court’s recent decision in Spera v. State, 971 So. 2d 754 (Fla.2007), Appellant would be entitled to an opportunity to amend the claim.. Given the nature of the allegations, however, it is apparent that an evidentiary hearing will be required to resolve the claim. Accordingly, we reverse and remand for that purpose.
REVERSED and REMANDED.
MONACO, J., and THOMPSON, E., Senior Judge, concur.
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Neal v. State, 984 So. 2d 1276 (Fla. 5th DCA 2008)…pending on the facts. Accordingly, we are bound to reverse and remand for the trial court to strike the motion with leave to amend within a specified time consistent with the parameters identified in Spera. (Footnote omitted); see Dinkins v. State, 974 So. 2d 555 (Fla. 5th DCA 2008). Because it is not apparent that the defects in Neal’s claim cannot be remedied by amendment, we reverse and remand with instructions that the trial court strike Neal’s motion with leave to amend within a reasonable time period.…
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Kristian Duarte v. State, 983 So. 2d 697 (Fla. 5th DCA 2008)…remand for the trial court to strike the motion with leave to amend within a specified time consistent with the parameters identified in Spera. Pierre v. State, 973 So. 2d 547, 548 (Fla. 5th DCA 2008) (footnote omitted); see also Dinkins v. State, 974 So. 2d 555 (Fla. 5th DCA 2008). Because it is not apparent in this case that the defects in the second and third claims cannot be remedied by amendment, we reverse and remand to the trial court to strike Duarte’s motion with leave to amend claims two and three…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)