ERIC LEVAN MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court held that an order dismissing a motion for postconviction DNA testing with leave to amend is a nonfinal, nonappealable order.
The defendant filed a motion for postconviction DNA testing, which the postconviction court found facially insufficient and dismissed with leave to am…
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Eric Levan Martin appeals an order dismissing his motion for postconviction DNA testing. See Fla. R. Crim P. 3.853. The postconviction court properly found the motion facially insufficient. Accordingly, the postconviction court dismissed the motion with leave to file a facially sufficient motion within sixty days. This is not an appealable order. See Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008) (noting that order dismissing rule 3.850 motion with leave to amend is nonfinal); Williams v. State, 884 So.2d 374, 375 (Fla. 2d DCA 2004) (explaining that the procedure of dismissing a pleading with leave to amend “renders the order nonfinal and nonappealable”).
Unfortunately, the postconviction court advised Mr. Martin that he could appeal the order to this court within thirty days. Mr. Martin did so.
We must dismiss this appeal because it stems from a nonappealable order. On remand, the postconviction court should amend its order to provide that it is not appealable at this time. The postconviction court should also give Mr. Martin sixty days in which to file a facially sufficient motion. See Herron v. State, 34 So.3d 206, 206-07 (Fla. 2d DCA 2010).
Dismissed and remanded.
KHOUZAM and BLACK, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brandin Christner v. State, 984 So. 2d 561 (Fla. 2d DCA 2008)
- Trenton Herron v. State, 34 So. 3d 206 (Fla. 2d DCA 2010)
- Williams v. State, 884 So. 2d 374 (Fla. 2d DCA 2004)