SHIRLEY ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed denial of constitutional challenge to drug statute but reversed and remanded ineffective assistance claim to allow amendment.
A trial court's denial of a Rule 3.850 motion challenging the constitutionality of section 893.13 is affirmed, but the denial of an ineffective assistance claim based on facial insufficiency is reversed and remanded to permit amendment.
[1] A trial court must allow a defendant to amend a facially insufficient ineffective assistance of counsel claim under Rule 3.850 if amendment can be made in good faith, rat…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a Rule 3.850 motion raising two claims: one challenging the constitutionality of section 893.13, Florida Statutes, and another allegin…
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The appellant filed a rule 3.850 motion raising two claims. In claim one she argues that section 893.13, Florida Statutes, is unconstitutional, based upon Shelton v. Secretary, Florida Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). We affirm the trial court’s denial of this claim. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).
Regarding claim two the appellant argues that she should have been permitted to amend this claim, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), after the trial court found her argument that counsel acted ineffectively to be facially insufficient. In response to this Court’s order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state has conceded that this portion of the order denying the claim due to facial insufficiency should be reversed and remanded to allow the appellant to amend the claim, if she can do so in good faith. See Spera.
We therefore affirm the court’s denial of relief on claim one and reverse and remand claim two with direction that the lower court allow the appellant the opportunity to amend this claim to attempt to make it facially sufficient.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
WOLF, DAVIS, and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Adkins, 96 So. 3d 412 (Fla. 2012)
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)