ANDRE I. DUNBAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andre Dunbar appeals the summary denial of his Rule 3.850 postconviction motion. The trial court erroneously concluded that Dunbar's original motion had been struck and that he failed to amend it, but the appellate court found no such striking order in the record and reversed for the trial court to consider the motion on its merits.
The trial court erred by failing to consider Dunbar's postconviction motion on the merits. No order in the record actually struck the original Rule 3.850 motion; the March 12, 2015 order only struck the motion for leave to amend and directed an amended motion to amend. Under Florida law, the postconviction court must give the defendant at least one opportunity to correct facially deficient claims.
[1] A trial court errs by denying a postconviction motion on the merits without properly considering it.
[2] A trial court must provide a defendant at least one opportunity to correct facially deficient postconviction claims.
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Join FLexlaw to unlock all legal intelligence“The post-conviction court must give the defendant at least one opportunity to correct facially deficient postconviction claims.”
Establishes the fundamental requirement that trial courts afford defendants an opportunity to cure deficient postconviction motions before dismissing them
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Join FLexlaw to unlock all legal intelligenceDunbar was convicted of robbery with a firearm, two counts of aggravated assault with a firearm, and grand theft. On June 22, 2014, he filed a timely …
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Andre Dunbar appeals the summary denial of his timely filed motion for postcon-viction relief. See Fla. R. Crim. P. 3.850. Because the trial court denied Dunbar’s motion after erroneously concluding that it had been stricken and that Dunbar had failed to amend it, we reverse and remand for the trial court to properly consider the motion on its merits.
Dunbar was convicted of robbery with a firearm, .two counts of aggravated assault with a firearm, and grand theft. On June 22, 2014, he filed a timely postconviction motion alleging eight grounds for relief. Dunbar filed a motion for leave to amend on February 19, 2015. On March 12, 2015, the trial court struck the motion because it could not ascertain what Dunbar was stating or the relief he was seeking. The trial court'then directed Dunbar to file a “handwritten in legible printed lettering” amended motion for leave to amend. Dunbar failed to file an amended motion. On October'4, 2016, the trial court denied the original rule 3.850 motion with prejudice, concluding:
On June 25,. 2014, Defendant filed a Motion for Postconviction . Relief pursuant to Florida Rule of Criminal Procedure 3.850. On February 24, 2015, Defendant filed a Motion for leave to Amend. The Court granted Defendant’s Motion on March 12, 2015, striking his postconviction motion and allowing him time to amend. The Court directed him to file a legible, hand-written motion as required by the rules.
To date, . Defendant has failed to amend his Motion for Postconviction Relief. Accordingly, denial of the Motion for Postconviction relief with prejudice is appropriate. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Further, any attempt to file a new postconviction motion will be untimely and thereby barred. Fla. R. Crim. P. 3.850(b).![1]
(Emphasis omitted).
Thereafter, Dunbar sought rehearing. He claimed he did not realize that his *204motion to amend would result in the striking of his postconviction motion, and he believed that the court would rule on the original motion even in the absence of an amendment. The motion for rehearing was denied.
Despite the trial court’s contrary conclusion, no order is contained within the record striking Dunbar’s original rule 3.850 motion. Likewise, nothing in the record supports the conclusion that Dunbar’s motion to amend was granted. By its own terms, the March 12, 2015 order actually strikes Dunbar’s barely legible motion for leave to. amend and directs him to file an amended motion to amend.
We therefore conclude the trial court erred when it failed to consider Dunbar’s postconviction motion on the merits. See Lozano v. State, 202 So.3d 148, 148 (Fla. 2d DCA 2016); Koszegi v. State, 993 So.2d 133, 134 (Fla. 2d DCA 2008) (“The post-conviction court must give the defendant at least one opportunity to correct facially deficient postconviction claims.” (citing Spera, 971 So.2d at 761. Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED
. SAWAYA, PALMER and BERGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Grogin v. State, 993 So. 2d 133 (Fla. 4th DCA 2008)
- Erie Ins. Exch. v. Larose, 202 So. 3d 148 (Fla. 2d DCA 2016)
- Lozano v. State, 202 So. 3d 148 (Fla. 2d DCA 2016)