KENNETH E. LAMKIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Lamkin appealed the denial of his Rule 3.850 postconviction motion alleging ineffective assistance of counsel. The court affirmed seven claims but reversed and remanded on claim 3, holding that the trial court abused its discretion by denying the facially insufficient claim without allowing Lamkin to amend it in compliance with the Florida Supreme Court's decision in Spera.
The court reversed and remanded claim 3 to allow Lamkin to amend his motion to state a facially sufficient claim identifying specific defenses that trial counsel should have raised. The court affirmed the denial of the other seven claims without further discussion.
[1] A trial court abuses its discretion by failing to allow a defendant at least one opportunity to amend a facially insufficient motion for postconviction relief.
[2] A claim that counsel misadvised a defendant about having no viable defense is facially insufficient if the defendant fails to identify the defense(s) that would have been…
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Join FLexlaw to unlock all legal intelligence“when a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.”
Establishes the controlling legal standard from Spera that governs the court's decision to reverse and remand.
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Join FLexlaw to unlock all legal intelligenceLamkin was originally charged with capital sexual battery but entered a negotiated plea to attempted sexual battery in May 2005, receiving a sentence …
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Charged originally with capital sexual battery, in May 2005 Kenneth Lamkin entered a negotiated plea to attempted sexual battery under which he was sentenced to sixteen years’ imprisonment followed by ten years of sex offender probation. His direct appeal was affirmed without a written opinion. Lamkin v. State, 918 So.2d 301 (Fla. 2d DCA 2005) (table decision). Subsequently, Lamkin filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 alleging eight claims of ineffective assistance of counsel. The postconviction court summarily denied all eight claims. We affirm as to seven of the claims without further discussion but reverse and remand as to claim 3 to allow Lamkin an opportunity to amend his motion to state a facially sufficient claim.
In claim 3, Lamkin alleges in very general terms that his plea was involuntary because counsel misadvised him that he had no viable defense. Because Lamkin failed to identify what defense or defenses he would have raised at trial, the postcon-viction court denied the claim on the ground of facial insufficiency.1 The court was correct in noting that such a claim is facially insufficient. See Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006), quashed on other grounds, 971 So.2d 754 (Fla.2007). Shortly before the date of the postconviction court’s order, however, the *2Florida Supreme Court held that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” Spera, 971 So.2d at 761.
Following Spera, we reverse and remand as to claim 3 to allow Lamkin to file an amended claim — if he “can do so in good faith,” id. at 762 — in which he identifies a defense or defenses that he believes trial counsel should have raised. Lamkin should be aware that, to show prejudice, it is his burden to demonstrate a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial. See Gilbert v. State, 913 So.2d 84, 86 (Fla. 2d DCA 2005) (citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)); see also Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla.2004).
Affirmed in part, reversed in part, and remanded.
KELLY and WALLACE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004)
- Harris v. United States, 536 U.S. 545 (U.S. 2002)
- Daron Merritt v. State, 814 So. 2d 424 (Fla. 2002)
- Spera v. State, 923 So. 2d 543 (Fla. 4th DCA 2006)
- Gilbert v. State, 913 So. 2d 84 (Fla. 2d DCA 2005)