TERRANCE LAMAR WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Filing a superfluous brief does not constitute abandonment of other issues on appeal.
Appellant filed a pro se brief addressing only one issue in an appeal where briefs are generally not required. The majority concluded this constituted…
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Appellant challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. Although Appellant raised numerous claims of ineffective assistance of trial counsel in his motion, on appeal he only addresses one point in his pro se brief — the alleged failure of the trial court to give him the opportunity to correct his facially deficient motion. Because it is evident that the trial court addressed the merits of Appellant’s claims and did not base its ruling on ostensible pleading deficiencies, we affirm as to Appellant’s one point on appeal. We have not reviewed the other issues presented to the trial court, however, because Appellant abandoned these issues by not addressing them in his brief. Austin v. State, 968 So.2d 1049, 1049 (Fla. 5th DCA 2007). We are aware of the intra-district conflict between Austin and Webb v. State, 757 So.2d 608 (Fla. 5th DCA 2000), on this point. We approve Austin and recede from Webb to the extent of such conflict.
AFFIRMED.
MONACO, C.J., GRIFFIN, SAWAYA, PALMER, ORFINGER, LAWSON, COHEN and JACOBUS, JJ., concur.
TORPY, J., concurs, and concurs specially in part and dissents in part, with opinion, in which EVANDER, J., concurs.
concurring in part and dissenting in part.
I agree with the majority that Appellant’s motion was disposed of on the merits. Therefore, his reliance upon Spera v. State, 971 So.2d 754 (Fla.2007), for the proposition that he should have been given leave to amend his motion is misplaced.
I disagree with the conclusion that Appellant abandoned all other issues by filing his pro se brief addressing only one point. As we observed in Webb, in appeals of this nature, Florida Rule of Appellate Procedure 9.141(b)(2)(C) expressly contemplates that briefs are unnecessary.1 I cannot agree that the filing of a superfluous document should be deemed an implied abandonment of anything. Our panel decision in Austin erroneously based its conclusion on Marshall v. State, 854 So.2d 1235 (Fla.2003). In Marshall, the appellant challenged the denial of a rule 3.850 motion after an evidentiary hearing was conducted on some of the claims. Thus, the appeal did not proceed under rule 9.141(b)(2)(C), and an appellate brief in proper form was required to obtain review.
Although some of the “briefs” in these cases are well-done, most are prepared without legal help and are difficult to decipher. In many cases, it will be impossible to discern which issues are preserved and which have been “abandoned.” In these cases, although we have customarily accepted submissions that do not conform to rules of procedure and treated them as “briefs,” after today’s decision, perhaps the fair thing to do is to strike non-conforming submissions and proceed as if there is no brief.
EVANDER, J., concurs.
TORPY, J.,
concurring in part and dissenting in part.
I agree with the majority that Appellant’s motion was disposed of on the merits. Therefore, his reliance upon Spera v. State, 971 So. 2d 754 (Fla.2007), for the proposition that he should have been given leave to amend his motion is misplaced.
I disagree with the conclusion that Appellant abandoned all other issues by filing his pro se brief addressing only one point. As we observed in Webb, in appeals of this nature, Florida Rule of Appellate Procedure 9.141(b)(2)(C) expressly contemplates that briefs are unnecessary.1 I cannot agree that the filing of a superfluous document should be deemed an implied abandonment of anything. Our panel decision in Austin erroneously based its conclusion on Marshall v. State, 854 So. 2d 1235 (Fla.2003). In Marshall, the appellant challenged the denial of a rule 3.850 motion after an evidentiary hearing was conducted on some of the claims. Thus, the appeal did not proceed under rule 9.141(b)(2)(C), and an appellate brief in proper form was required to obtain review.
Although some of the “briefs” in these cases are well-done, most are prepared without legal help and are difficult to decipher. In many cases, it will be impossible to discern which issues are preserved and which have been “abandoned.” In these cases, although we have customarily accepted submissions that do not conform to rules of procedure and treated them as “briefs,” after today’s decision, perhaps the fair thing to do is to strike non-conforming submissions and proceed as if there is no brief.
EVANDER, J., concurs.
. Florida Rule of Appellate Procedure 9.141(b)(2)(C), pertaining to appeals from summary post conviction proceedings, states in pertinent part: "No briefs or oral argument shall be required, but any appellant's brief shall be filed within 15 days of the filing of the notice of appeal.”
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Utile v. State, 235 So. 3d 1045 (Fla. 5th DCA 2018)…s motion, asking that the lower court "do a cumulative analysis on the above two grounds of newly discovered evidence.” Ground four has not been separately briefed, and thus, appellate review of this ground has not been preserved. See Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009). Moreover, in light of our decision today on grounds one and two, ground four is immaterial and moot.…
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Walton v. State, 58 So. 3d 887 (Fla. 2d DCA 2011)…se. But we believe that a pro se postcon-viction claimant can, by failing to raise such issues in his brief, waive a Spera claim. See Watson, 975 So. 2d at 574-75 (Wolf, J., concurring). Other courts have reached the same result. See Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009); cf. Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010); Austin v. State, 968 So. 2d 1049 (Fla. 5th DCA 2007); see also Prince v. State, 40 So. 3d 11, 13 (Fla. 4th DCA 2010) (reiterating that a pro se appellant who presents…
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Livingston Jarrod Winters v. State, 322 So. 3d 25 (Fla. 5th DCA 2022)…Livingston Jarrod Winters appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Three and Four, which Winters abandoned on appeal. See Ward v. State, 19 So. 3d 1060, 1060 (Fla. 5th DCA 2009) (en banc). We reverse, however, on Grounds One and Two because Winters filed a timely but insufficient motion. He is therefore entitled to amend these grounds, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)…
Previewing 3 of 26 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Marshall v. State, 854 So. 2d 1235 (Fla. 2003)
- Eugenia Austin v. State, 968 So. 2d 1049 (Fla. 5th DCA 2007)
- Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000)