ROBERT WOOLARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
ROBERT WOOLARD, APPELLANT,
STATE OF FLORIDA, APPELLEE
992 So. 2d 919
Florida District Court of Appeal, Fourth District (2008)
Positive Treatment
Cited by 5 cases
Opinion of the Court
PER CURIAM.
We reverse and remand the dismissal with prejudice of Woolard’s amended rule 3.850 motion for postconviction relief. As the dismissal without prejudice of his initial motion did not advise him that the insufficiency concerned his having alleged Paragraphs 32 and 56 “upon information and belief,” but pointed out only the insufficiency of his oath at the end of his motion, which he promptly corrected, the trial court should have been given him one more opportunity to amend. As the time for filing a timely rule 3.850 expired — in this case, after the filing of the amended motion — the trial court on remand should give Woolard a brief period of time within which to amend.
POLEN, TAYLOR and HAZOURI, JJ., concur.
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Heartwood 2, LLC v. Shay Dori, 208 So. 3d 817 (Fla. 3d DCA 2017)…iv. P. 1.140(b) (providing that “[ejvery defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading ... [and] [a]ny ground not stated shall be deemed to be waived ....”); S. Mgmt. & Dev., L.P. v. Gardner, 992 So. 2d 919, 920 (Fla. 4th DCA 2008) (holding that affirmative defenses are waived if not pled); Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So. 2d 992, 993 (Fla. 4th DCA 2003) (reversing the trial court’s involuntary dismissal that was based on an unpled af…
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Joni MacRi v. Clements & Ashmore, P.A., 15 So. 3d 762 (Fla. 1st DCA 2009)…affirmative defense does not ordinarily have to be anticipated in a complaint, see Shahid v. Campbell, 552 So. 2d 321 (Fla. 1st DCA 1989), and unless raised by the defendants could be deemed to be waived. See, e.g., Southern Mgmt. & Dev. v. Gardner, 992 So. 2d 919 (Fla. 4th DCA 2008). The specific allegations of negligence in the complaint in the present case were sufficient and the appellants did not have to negate the section 766.303(2) exclusivity which the defendants claimed, until the defendants raised t…
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United Auto. Ins. Co. v. Isot Med. Ctr. Corp. (Fla. 3d DCA 2021)…insurance contract case. In a contract action, set-off is an affirmative defense that must be pleaded or it is waived. Fla. R. Civ. P. 1.110(d); Heartwood 2, LLC v. Dori, 208 So. 3d 817, 821 (Fla. 3d DCA 2017); S. Mgmt. & Dev., L.P. v. Gardner, 992 So. 2d 919, 920 (Fla. 4th DCA 2008); see also Felgenhauer v. Bonds, 891 So. 2d 1043, 1045 (Fla. 2d DCA 2004) (noting that in contrast to a contract action, in tort actions set-off is not an affirmative defense to be considered by the jury but is a determina…