GARY WHITE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary White appeals a trial court's denial of his Rule 3.850 motion for postconviction relief based on ineffective assistance of counsel. The Third District affirms the denial following an evidentiary hearing on White's amended motion.
The court affirmed the trial court's order denying postconviction relief, finding no error in the trial court's decision following the evidentiary hearing on White's ineffective assistance of counsel claim.
[1] A trial court should strike or dismiss a legally insufficient motion for postconviction relief with leave to amend, rather than summarily denying it.
[2] An order striking a motion for postconviction relief and granting leave to amend is a nonfinal, nonappealable order.
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the proper procedure for handling legally insufficient Rule 3.850 motions on remand
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Join FLexlaw to unlock all legal intelligenceIn 2010, White filed a Rule 3.850 motion claiming his trial counsel rendered ineffective assistance by failing to investigate and present defense witn…
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Gary White appeals the trial court’s order denying his motion for postconviction relief following an evidentiary hearing. We affirm.
In 2010, White filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, White claimed, inter alia, that his trial counsel rendered ineffective assistance by failing to investigate and present defense witnesses at trial. The trial judge summarily denied the motion as legally insufficient. On appeal, we reversed the 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 time, is a nonfinal, nonappealable order.2
Upon remand, the successor trial judge entered an order striking White’s initial motion for postconviction relief as legally insufficient, and granted leave to amend the motion with thirty days. Thereafter, White timely filed his amended motion and the trial court, determining that the amended motion was legally sufficient, held an evidentiary hearing on White’s claim of ineffective assistance of counsel. Following the evidentiary hearing, the trial court entered an order denying White’s motion.
Having reviewed the record, the hearing transcript, and the trial court’s order, we affirm the order denying relief.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnson v. State, 150 So. 3d 1288 (Fla. 3d DCA 2014)…he facial insufficiency of the motion, the trial court should have entered a nonfi-nal, nonappeable order dismissing the motion and allowing Johnson sixty days within which to file an amended motion. See Fla. R. Crim. P. 3.850(f)(2); White v. State, 116 So. 3d 597 (Fla. 3d DCA 2013). ' We therefore reverse the order denying the motion, remand the cause for the court to enter an order which dismisses the motion as insufficient and which allows Johnson sixty days in which to file an amended motion.…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- In re Amendments to the Florida Rules of Criminal Procedure and the Florida Rules of Appellate Procedure, 112 So. 3d 1234 (Fla. 2013)
- White v. State, 62 So. 3d 1156 (Fla. 3d DCA 2011)