THOMAS MAULDIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Mauldin appeals the summary denial of his postconviction motion challenging his 40-year sentence for lewd and lascivious molestation. The appellate court affirmed most claims but reversed as to two claims that were legally insufficient, remanding for the trial court to allow amendment.
The motion was timely filed under Florida Rule of Criminal Procedure 3.850(b)(3) because Mauldin retained counsel who signed and mailed it within the deadline, despite delayed docketing. Claims 2, 4, 5, 6, and 7 were properly denied on the merits, but claims 1 and 3 were legally insufficient and should have been subject to amendment before denial.
[1] A motion for postconviction relief is timely filed when retained counsel, through neglect, fails to timely file the motion.
[2] A postconviction court should grant a movant an opportunity to amend legally insufficient claims rather than summarily denying them.
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Join FLexlaw to unlock all legal intelligence“Because claims 1 and 3 were legally insufficient, however, the postconviction court should have given Mr. Mauldin an opportunity to amend those claims.”
Establishes the core holding that legally insufficient claims must be subject to amendment before denial on the merits.
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Join FLexlaw to unlock all legal intelligenceMauldin is serving a 40-year prison sentence for lewd and lascivious molestation of a child under 12 years old. His direct appeal conviction was affir…
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Thomas Mauldin appeals the summary denial of his motion for postconviction relief. See Fla. R. Crim. P. 8.850. He is serving a forty-year prison sentence for lewd and lascivious molestation of a victim less than twelve years old. See § 800.04(5)(b), Fla. Stat. (2008). We affirmed his judgment and sentence on direct appeal. Mauldin v. State, 61 So.3d 1125 (Fla. 2d DCA 2011) (table). Our mandate issued on or about June 15, 2011.
*528On June 6, 2013, Mr. Mauldin, through counsel, signed and readied for mailing his motion for postconviction relief to the clerk of the court for filing.1 Finding the motion facially sufficient, the postconviction court ordered the State to respond. Adopting the State’s response, the postconviction court denied Mr. Mauldin’s motion on the merits.2 We affirm the postconviction court’s order as to claims 2, 4, 5, 6, and 7. Because claims 1 and 3 were legally insufficient, however, the postconviction court should have given Mr. Mauldin an opportunity to amend those claims. See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we affirm in part, reverse in part, and remand with directions for the post-conviction court to allow Mr. Mauldin the opportunity, if he can in good faith, to amend claims 1 and 3.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and VILLANTI, JJ„ Concur.