ROBERT STEPHEN PHILIP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant should be given an opportunity to amend a facially insufficient postconviction motion.
[1] A trial court abuses its discretion when it fails to allow a defendant at least one opportunity to amend a facially insufficient motion for postconviction relief.
[2] A motion for postconviction relief alleging ineffective assistance of counsel for failing to depose state witnesses must allege specific omissions due to counsel's failur…
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Join FLexlaw to unlock all legal intelligenceAppellant sought postconviction relief, alleging ineffective assistance of counsel for failing to depose state witnesses. The trial court denied the c…
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Robert Philip appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised twelve grounds for relief. We affirm the postconviction court’s order on all grounds except on ground 3(a). Pursuant to Spera v. State, 971 So.2d 754, 761 (Fla.2007), we reverse and remand for further proceedings on ground 3(a) only.
In ground 3(a) of his motion Philip alleged that his counsel was ineffective for *1244 failing to depose the State’s witnesses in preparation for trial. The trial court denied this claim because it “failed to allege specific omissions due to counsel’s failure to depose State’s witnesses.” We find no error in the postconviction court’s summary denial of ground 3(a) because it was facially insufficient. However, under Spera the court should have given Philip an opportunity to amend his motion to state a facially sufficient claim.1 971 So.2d at 761 (holding 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” within a reasonable period of time not to exceed thirty days). Accordingly, we reverse the denial of ground 3(a) and remand for the court to strike the claim with leave to amend within a specific period of time not to exceed thirty days, if Philip can do so in good faith. If Philip files an amended motion on this ground, the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.
Affirmed in part, reversed in part, and remanded with directions.
ALTENBERND and FULMER, JJ„ Concur.
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Citator
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Hayes v. State, 79 So. 3d 230 (Fla. 2d DCA 2012)…s files an amended motion on this ground, “the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.” Philip v. State, 14 So. 3d 1243, 1244 (Fla. 2d DCA 2009). Affirmed in part, reversed in part, and remanded. ALTENBERND and WHATLEY, JJ., Concur.…
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Balcazar v. State, 116 So. 3d 575 (Fla. 2d DCA 2013)…ar files an amended motion on this claim, “the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.” Philip v. State, 14 So. 3d 1243, 1244 (Fla. 2d DCA 2009). However, in light of the substantive basis of the postconviction court’s denial 1 — that Balcazar could not demonstrate prejudice because the trial court had at the plea colloquy stated, ‘You understand if you’re not a Unit…
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Rosa v. State, 27 So. 3d 230 (Fla. 2d DCA 2010)…nce that prejudiced the defendant.”). However, under Spera v. State, 971 So. 2d 754, 761 (Fla.2007), the postconviction court should have given Rosa an opportunity to amend his motion to state a facially sufficient claim. See, e.g., Philip v. State, 14 So. 3d 1243, 1243-44 (Fla. 2d DCA 2009); Monroe v. State, 13 So. 3d 1083, 1084 (Fla. 2d DCA 2009); Griggs v. State, 995 So. 2d 994, 995 (Fla. 1st DCA 2008). Accordingly, we reverse the dismissal of ground one and remand for the court to strike the claim with le…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)