CURTIS DEWAYNE ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Anderson appeals a trial court's denial of his petition to file a belated motion for postconviction relief. The court held that while the trial court correctly identified the motion as legally insufficient for being unsworn, it should have dismissed the motion and given Anderson an opportunity to refile with proper formalities rather than outright denying it.
The trial court must dismiss or strike an unsworn motion for postconviction relief and grant the defendant an opportunity to refile a properly sworn motion within a reasonable time. The court cannot simply deny the motion without allowing amendment.
[1] A defendant is entitled to an evidentiary hearing on a claim that the deadline to file a postconviction relief motion was missed because retained counsel agreed to file t…
[2] A postconviction relief motion filed beyond the time limitation may be permitted if the defendant retained counsel to timely file the motion and counsel, through neglect,…
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Join FLexlaw to unlock all legal intelligence“due process rights entitle a defendant to a hearing on a claim that he missed the deadline to file a rule 3.850 motion because his attorney had agreed to file the motion but failed to do so in a timely manner”
Establishes that due process requires a hearing when attorney neglect causes missed deadlines for postconviction motions
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Join FLexlaw to unlock all legal intelligenceAnderson retained private counsel to timely file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Anderson alleges t…
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Appellant, Curtis Anderson (“Anderson”), appeals the trial court’s order denying his petition to file a belated motion for postconviction relief. Anderson alleged that he retained private counsel to timely file a motion for postconviction relief, and that private counsel failed to do so. Anderson sought an evidentiary hearing to establish his entitlement to seek postconviction relief on this basis. See Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999) (holding that due process rights entitle a defendant to a hearing on a claim that he missed the deadline to file a rule 3.850 motion because his attorney had agreed to file the motion but failed to do so in a timely manner); see also Fla. R.Crim. P. 3.850(b)(3) (permitting the filing of a 3.850 motion beyond the two-year time limitation where defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to do so).
The trial court denied Anderson’s petition because it was unsworn. See Fla. R.Crim. P. 3.850(c). Although the trial court was correct in its determination that the motion was legally insufficient, it should have dismissed or stricken the motion and granted Anderson an opportunity to refile a sworn motion within a reasonable period of time. See Spera v. State, 971 So.2d 754, 761 (Fla.2007) (holding when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet *1181the rule’s pleading requirements, the proper procedure is to dismiss or strike the-motion and allow the defendant at least one opportunity to amend the motion within a reasonable time); Weisman v. State, 651 So.2d 148, 149 (Fla. 2d DCA 1995) (holding where a defendant files unsworn motion for belated appeal, trial court must afford defendant an opportunity to refile a properly sworn motion).
Accordingly, we vacate the trial court’s order and remand for the trial court to dismiss the motion with leave for Anderson to refile a legally sufficient motion with the proper oath within sixty days from the date this opinion becomes final. If Anderson fails to do so, however, the trial court may deny the motion on the merits.
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Cited By
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Hartsfield v. State, 139 So. 3d 948 (Fla. 2d DCA 2014)…ed within two years of the effective date of amendment to rule 3.850(b)(3) was timely but recognizing the State could raise a claim of laches). However, Hartsfield’s petition did not contain the oath required by rule 3.850(c). See Anderson v. State, 67 So. 3d 1180, 1181 (Fla. 3d DCA 2011). On remand, the post-conviction court should strike the petition and allow Hartsfield sixty days to file an amended petition with the proper oath. See id.; Fla. R. Crim. P. 3.850(f)(2). Reversed and remanded. NORTHCUTT a…
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Domonique Smith v. State (Fla. 3d DCA 2019)…f”); Marckson v. State, 151 So. 3d 44 (Fla. 3d DCA 2014) (reversing order summarily denying 3.850 motion as legally insufficient and remanding cause for trial court to permit defendant to file an amended motion within sixty days); Anderson v. State, 67 So. 3d 1180 (Fla. 3d DCA 2011). Accordingly, we reverse the order on review and remand this cause for the trial court to permit Smith an opportunity to file a facially sufficient motion within sixty days, and for further proceedings thereafter as may be appropr…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)
- Weisman v. State, 651 So. 2d 148 (Fla. 2d DCA 1995)