JOSHUA ALAN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joshua Davis appeals denial of his rule 3.850 postconviction relief motion raising ten claims of ineffective assistance of counsel. The court affirms denial of most claims but reverses the dismissal of claim three, holding that the trial court abused its discretion in refusing to allow Davis an opportunity to cure pleading deficiencies in light of Spera v. State.
Yes. The trial court abused its discretion in dismissing claim three for pleading deficiency without allowing Davis at least one opportunity to correct the deficiency, as required by Spera v. State.
[1] A court abuses its discretion by failing to allow a defendant at least one opportunity to correct a pleading deficiency in a first postconviction motion, unless the defic…
[2] A postconviction court errs by refusing to consider a defendant's clarification of a claim made in a motion for rehearing when the clarification is intended to cure a ple…
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Join FLexlaw to unlock all legal intelligence“in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected”
The controlling legal standard from Spera v. State requiring courts to allow defendants opportunity to cure pleading deficiencies in rule 3.850 motions
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Join FLexlaw to unlock all legal intelligenceDavis was convicted by jury trial of first-degree murder and kidnapping. He was sentenced to life imprisonment for murder and eight years for kidnappi…
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KELLY, Judge.
Joshua Alan Davis appeals the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Davis raised ten separate claims in his motion. We affirm without comment the postconviction court’s denial of claims one, two, four, and five through ten. We reverse the denial of claim three in light of the Florida Supreme Court’s recent decision in Spera v. State, 971 So. 2d 754 (Fla.2007).
Davis was convicted after a jury trial of first-degree murder and kidnapping.
The trial court sentenced Davis to life in prison for the murder conviction and eight years’ incarceration for the kidnapping. Davis’s convictions and sentences were affirmed by this court on appeal. Davis v. State, 755 So. 2d 120 (Fla. 2d DCA 2000) (table decision).
In claim three of his rule 3.850 motion, Davis asserted what the postconviction court believed was a claim that trial counsel was ineffective for failing to adequately argue for a judgment of acquittal on the first-degree felony murder charge. The court found this claim facially insufficient because Davis did not adequately allege what counsel “failed to do” or “should have done” in arguing for a judgment of acquittal. Davis attempted to provide additional details to clarify this claim in a motion for rehearing; however, the postconviction court refused to consider his argument finding that “to the extent [Davis] raises a ‘new* claim in ground three by amending the allegations he made in his original motion, this is not a proper argument to be made in a motion for rehearing.” This was error. In Spera, the supreme court held that “in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.” Id. at 755.
Thus, in accordance with Spera, we reverse the postconviction court’s denial of claim three and remand for the court to strike this claim from Davis’s postconviction motion with leave to amend within a reasonable time.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and LaROSE, JJ., Concur.