CHRISTIAN JHOEL PEREZ NUNEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A motion for postconviction relief that is insufficient on its face should not be summarily denied but must be allowed an opportunity to be amended.
Appellant sought postconviction relief, but his motion was insufficient on its face. The trial court summarily denied the motion.…
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Appellant seeks review of an order summarily denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. However, because the motion filed with the trial court was insufficient on its face,1 the trial court should not have summarily denied the motion, but instead was required to “enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.” Fla. R. Grim. P. 3.860(f)(2). See also Charles v. State, 193 So.3d 46, 47 (Fla. 3d DCA 2016).
We therefore reverse and remand with directions that the trial court enter a non-final, nonappealable order permitting appellant sixty days within which to file an amended motion that is sufficient on its face, and for further proceedings as may be appropriate. If the amended motion is still insufficient on its face, or if appellant fails to timely file such an amended motion, the court in its discretion may permit appellant an additional opportunity to amend, or may enter a final, appealable order summarily denying the motion with prejudice. Id.
Reversed and remanded.
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Citator
Authorities Cited
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010)
- Hernandez v. State, 124 So. 3d 757 (Fla. 2012)
- Enel Charles v. State, 193 So. 3d 46 (Fla. 3d DCA 2016)