WARREN TENSLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of postconviction relief on most grounds but reversed and remanded one speedy trial claim to allow the defendant to amend his allegations to include the required prejudice element.
A postconviction motion challenging speedy trial violations must allege that the State could not have brought the defendant to trial within the recapture period to establish prejudice.
[1] A postconviction claim of ineffective assistance of counsel based on speedy trial violations requires an allegation that the State could not have brought the defendant to…
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The required allegation to establish prejudice in speedy trial postconviction claims, citing Smith v. State and Dexter v. State.
Warren Tensley filed an amended motion for postconviction relief arguing that defense counsel failed to provide a tactical reason for allowing trial t…
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Warren Tensley challenges the order summarily denying his motion for postcon-viction relief. We affirm without comment the postconviction court’s denial of Tens-ley’s motion in all respects except one.
In his memorandum of law in support of his amended motion for postconviction relief, Tensley argued that the record does not reveal a tactical reason for defense counsel to have allowed trial to occur after the 175-day speedy trial period expired. See Fla. R.Crim. P. 3.191(a). However, he failed to allege prejudice from trial counsel’s conduct by alleging “ ‘that the State could not have brought him to trial within the recapture period,’ ” Smith v. State, 988 So.2d 693, 694 (Fla. 2d DCA 2008) (quoting Dexter v. State, 837 So.2d 595, 596 (Fla. 2d DCA 2003)). Consequently, this ground is legally insufficient. Smith, 988 So.2d at 694. Under such circumstances, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), this court remands “for the movant to be given the chance to amend if the movant *1044c[an] allege that the State could not have brought him to trial within the recapture period.” Norwood, v. State, 39 So.3d 336, 337 (Fla. 2d DCA 2010). Therefore, we reverse the summary denial of the last ground addressed by the postconviction court in its order and remand with instructions to strike that claim with leave to amend within a specific period of time in accordance with Spera.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and NORTHCUTT, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Smith v. State, 988 So. 2d 693 (Fla. 2d DCA 2008)
- Dexter v. State, 837 So. 2d 595 (Fla. 2d DCA 2003)
- Norwood v. State, 39 So. 3d 336 (Fla. 2d DCA 2010)