GARY WHITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2011-06-01
No. 3D11-434
Before SUAREZ, LAGOA, and EMAS, JJ.
62 So. 3d 1156 Florida District Court of Appeal, Third District (2011) Positive Treatment
Cited by 2 cases

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Synopsis

Gary White appealed the denial of his Rule 3.850 motion for postconviction relief alleging ineffective assistance of counsel. The court affirmed the denial regarding the preliminary hearing claim but reversed and remanded the claim about failure to investigate and present defense witnesses, holding that the trial court must either show the record conclusively refutes the allegations or allow White to amend his legally insufficient motion.


Holding

The court affirmed denial of the preliminary hearing claim as lacking merit as a matter of law, but reversed the denial of the defense witness claim and remanded, holding that when a Rule 3.850 motion is deemed facially insufficient, the trial court must either attach record portions conclusively establishing no relief is due or allow the defendant at least one opportunity to amend within a reasonable time (not exceeding thirty days).


Headnotes

[1] A trial court abuses its discretion by denying a motion for postconviction relief based on legal insufficiency without allowing the defendant an opportunity to amend the…

[2] When a motion for postconviction relief is denied based on the legal insufficiency of the claims, the trial court must allow the defendant at least one opportunity to ame…

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Key Quotes

“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 required procedural safeguard for handling facially insufficient Rule 3.850 motions

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Facts & Procedural History

White filed a postconviction relief motion claiming his trial counsel rendered ineffective assistance by failing to investigate and present defense wi…

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Opinion of the Court
EMAS, J.

EMAS, J.

Gary White appeals an order summarily denying his initial motion for postconviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, reverse in part and remand this cause to the trial court.

White alleged in his motion that his trial counsel rendered ineffective assistance by failing to investigate defense witnesses and by failing to present defense witnesses at trial.1 In its response to White’s motion, the State argued that this claim was legally insufficient because White’s motion:

— Failed to identify the defense witnesses by name;
— Failed to allege that these witnesses were available to testify at trial; and
— Failed to allege how the testimony of these witnesses would have affected the outcome of the trial.

The trial court entered an order denying the motion without an evidentiary hearing. The order simply states:

THIS CAUSE having come on to be heard upon the defendant’s Motion for Post-Conviction Relief on November 1st, 2010.
ORDERED AND ADJUDGED that the defendant’s Motion for Post-Conviction Relief is hereby DENIED.

The order does not state a basis for the denial. If the denial of the motion was based upon the record, the Court failed to attach to its order those portions of the files or record establishing White is entitled to no relief on this claim. See Fla. R.Crim. P. 3.850(d).

*1158If the denial of the motion was based upon the legal insufficiency of the motion (as urged by the State in its response), the trial court should have followed the procedure outlined in Spera v. State, 971 So.2d 754, 761-62 (Fla.2007):

[W]hen 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.... [W]e hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less. The striking of further amendments is subject to an abuse of discretion standard that depends on the circumstances of each case.
We also stress that our decision is limited to motions deemed facially insufficient to support relief — that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings.

We therefore affirm that portion of the trial court’s order denying White’s claim of ineffective assistance of counsel for failure to request an adversary preliminary hearing. We reverse that portion of the trial court’s order denying White’s claim of ineffective assistance of counsel for failure to investigate and present defense witnesses at trial, and remand with directions that the trial court either: 1) enter an amended order attaching those portions of the files and record that conclusively establish White is entitled to no relief; or 2) permit White an opportunity to amend his motion to state a legally sufficient claim, and for proceedings thereafter consistent with this opinion.


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Citator

Cited By

  • White v. State, 116 So. 3d 597 (Fla. 3d DCA 2013)
    …trial court’s summary denial, holding that, where the motion is legally insufficient as pled, the court should not deny the motion, but rather strike or dismiss the motion, with leave to amend within a reasonable period of time. See White v. State, 62 So. 3d 1156, 1158 (Fla. 3d DCA 2011) (citing Spera v. State, 971 So. 2d 754 (Fla.2007)).1 Thus, an order that dismisses or strikes, as legally insufficient, a timely rule 3.850 motion, and provides the defendant with leave to amend the motion within a specific…

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