OPTAVIS O. OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the trial court's summary denial of Oliver's ineffective assistance of counsel claim regarding a drug dog's reliability, finding the deficiencies could be remedied by amendment, but affirmed the denial of his remaining postconviction relief claims.
A trial court must allow amendment of postconviction ineffective assistance claims unless defects are incurable, rather than summarily denying them.
[1] Trial courts must permit amendment of deficient postconviction ineffective assistance claims unless the defects are incurable, rather than summarily denying such claims.
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Join FLexlaw to unlock all legal intelligence“unless it is apparent that defects in postconviction claims cannot be remedied by amendment, the trial court must allow a defendant to amend his motion to correct deficiencies”
Court citing Neal v. State for the standard governing summary denial of postconviction motions
Optavis Oliver was arrested based on a drug dog alert. He filed a motion for postconviction relief raising six claims, including one alleging his tria…
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Optavis Oliver appeals the trial court’s order, which summarily denied four claims set forth in his motion for postconviction relief and denied two others after an evi-dentiary hearing.1 Pursuant to Spera v. State, 971 So.2d 754, 755 (Fla.2007), we reverse that portion of the order summarily denying claim two wherein Oliver attempted to allege ineffective assistance of his trial counsel for failing to properly challenge the reliability of the drug dog that initially alerted on the drugs that ultimately led to Oliver’s arrest. We do so because we are unable to conclude that the deficiencies in the motion as to that claim cannot be remedied by amendment. See also Neal v. State, 984 So.2d 1276, 1277 (Fla. 5th DCA 2008) (holding that unless it is apparent that defects in postconviction claims cannot be remedied by amendment, the trial court must allow a defendant to amend his motion to correct deficiencies); Vasser v. State, 983 So.2d 704 (Fla. 5th DCA 2008); Pierre v. State, 973 So.2d 547, 548 (Fla. 5th DCA 2008). Accordingly, the pertinent part of the order is reversed and this case is remanded with instructions that the trial court strike claim two with leave to amend “in a specified time consistent with parameters identified in Spera.” Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008). As to the remaining portion of the order denying the other five claims, we affirm without further comment.
*705AFFIRMED in part; REVERSED in part; and REMANDED.
GRIFFIN and EVANDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Escobar-Guillen v. State, 53 So. 3d 393 (Fla. 5th DCA 2011)…on. Pursuant to Spera v. State, 971 So. 2d 754, 755 (Fla.2007), we reverse. We do so because we are unable to conclude that the facial deficiencies of these claims, referenced by the trial court, cannot be remedied by amendment. See Oliver v. State, 10 So. 3d 704 (Fla. 5th DCA 2009). Accordingly, the order is reversed and this case remanded with instructions that the trial court strike the motion with leave to amend in a specified time consistent with the parameters identified in Spera. See Oliver; Parsons…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Pierre v. State, 973 So. 2d 547 (Fla. 5th DCA 2008)
- Parsons v. State, 981 So. 2d 1249 (Fla. 5th DCA 2008)
- C.M.M. v. State, 983 So. 2d 704 (Fla. 5th DCA 2008)
- Vasser v. State, 983 So. 2d 704 (Fla. 5th DCA 2008)
- Neal v. State, 984 So. 2d 1276 (Fla. 5th DCA 2008)