ORLANDO ALVAREZ
v.
STATE
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A trial court must grant leave to amend a Rule 3.850 postconviction motion when the pleading is facially insufficient but the defendant was not put on notice of the defect.
[1] When a Rule 3.850 postconviction motion is facially insufficient as pled but the defendant was not placed on notice of the defect, the trial court must grant leave to ame…
[2] A trial court's summary denial of a Rule 3.850 postconviction claim of ineffective assistance of counsel for failure to depose a witness requires attachment of records th…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Should Alvarez amend this claim, if the postconviction court wants to summarily deny relief again, it must attach records that conclusively refute this ground for relief.”
The court's instruction on remand regarding the standard for summary denial of the amended motion.
Orlando Alvarez appealed the summary denial of his amended Rule 3.850 motion for postconviction relief alleging, among other things, that trial counse…
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PER CURIAM.
Orlando Alvarez appeals the summary denial of his amended Florida Rule of
Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand the summary denial of Alvarez’s first ground for relief, alleging that his trial counsel failed to depose the victim and other relevant witnesses. The ground, as pled, was facially insufficient but Alvarez was not put on notice of the defect. The postconviction court should have granted Alvarez leave to amend. Fla. R. Crim. P. 3.850(f)(3); Osorio v. State,
233 So. 3d 516, 517 (Fla. 2d DCA 2017). Should Alvarez amend this claim, if the postconviction court wants to summarily deny relief again, it must attach records that conclusively refute this ground for relief. Fla. R. Crim. P. 3.850(f)(5); Castro v. State, 240
So. 3d 877, 878 (Fla. 5th DCA 2018) (indicating that statement of satisfaction with counsel alone is generally insufficient to conclusively refute claim that counsel was ineffective for failing to call witness). In all other respects, we affirm the trial court's order.
AFFIRMED in part; REVERSED in part; and REMANDED. COHEN, C.J., ORFINGER and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Osorio v. State, 233 So. 3d 516 (Fla. 2d DCA 2017)
- Castro v. State, 240 So. 3d 877 (Fla. 5th DCA 2018)