DANIEL BRIAN EMMERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Emmert appealed the summary denial of postconviction relief claims under Florida Rule of Criminal Procedure 3.850. The court affirmed the denial of most claims but reversed and remanded one claim to allow Emmert an opportunity to amend his ineffective assistance of counsel claim involving alleged inconsistencies in witness statements.
The postconviction court abused its discretion by summarily denying the claim without giving Emmert an opportunity to amend. Under Spera v. State, a defendant is entitled to at least one opportunity to amend a facially insufficient postconviction claim, and the court must strike the claim with leave to amend rather than deny it summarily.
[1] A postconviction court abuses its discretion by summarily denying a claim as facially insufficient without providing the movant an opportunity to amend.
[2] A claim of ineffective assistance of counsel based on failure to investigate pretrial statements is facially insufficient if it does not identify the alleged inconsistenc…
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Join FLexlaw to unlock all legal intelligence“Spera holds that a postconviction court abuses its discretion if it fails to permit a defendant at least one opportunity to amend a facially insufficient claim in a motion for postconviction relief.”
States the governing legal standard that requires courts to allow amendment of facially insufficient postconviction claims
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Join FLexlaw to unlock all legal intelligenceEmmert was convicted of armed burglary, arson, and burning to defraud in connection with a fire at his place of employment. In his postconviction reli…
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Daniel Brian Emmert appeals the summary denial of three of the claims he raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of claims one and seven without further discussion. As to claim 8(b), however, we reverse and remand with instructions to the postconviction court to give Emmert an opportunity to amend this claim if he can do so in good faith.
Emmert was convicted of armed burglary, arson, and burning to defraud in connection with a fire that occurred at his place of employment. In claim 8(b) of his motion for postconviction relief, Emmert asserted that his trial counsel provided ineffective assistance by failing to properly investigate alleged inconsistencies in the various pretrial statements given by State’s witness Patsy Storey. Emmert alleged that this failure resulted in trial counsel being unable to effectively cross-examine Storey during trial concerning these alleged inconsistencies. However, Emmert’s motion failed to identify any of the alleged inconsistencies at issue.
The postconviction court ordered the State to respond to this claim. In its response, the State contended that the claim was facially insufficient because it did not identify the inconsistencies that trial counsel allegedly failed to investigate. After considering the State’s response, the postconviction court denied claim 8(b) as facially insufficient without providing Em-mert with an opportunity to amend the claim.
In this appeal, Emmert contends that he should have been given leave to amend *304claim 8(b) pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). Spera holds that a postconviction court abuses its discretion if it fails to permit a defendant at least one opportunity to amend a facially insufficient claim in a motion for postconviction relief. Id. at 761. Here, the postconviction court found that claim 8(b) was facially insufficient because it did not identify the inconsistencies about which Emmert was complaining. Having made this finding, the postconviction court should have stricken this claim with leave to amend pursuant to Spera. Instead, it summarily denied the claim, which was an abuse of discretion. Therefore, on this single claim, we reverse and remand for the postconviction court to strike this claim and give Emmert leave to amend it, if he can do so in good faith, for a period not to exceed thirty days. Id. at 761-62.
Affirmed in part, reversed in part, and remanded for further proceedings.
SILBERMAN, C.J., and CASANUEVA, J., Concur.