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Herron v. State

District Court of Appeal of Florida, Second District
May 7, 2010
34 So. 3d 206 (Fla. Dist. Ct. App. 2010)

Summary

explaining that appellate courts do not have jurisdiction to review nonfinal rule 3.850 orders

Summary of this case from Hardy v. State

Opinion

No. 2D09-4534.

May 7, 2010.

Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.


Trenton Herron filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 raising five claims with multiple subparts. The postconviction court denied some claims and dismissed others as facially insufficient. Instead of setting a reasonable time limit of no more than thirty days for amending the facially insufficient claims as required by Spera v. State, 971 So.2d 754, 761 (Fla. 2007), the postconviction court permitted amendment at any time within the two-year time limit of rule 3.850(b), which in Mr. Herron's case does not expire until approximately March 9, 2011. At the same time, the postconviction court erroneously notified Mr. Herron that he could appeal this nonfinal order within thirty days, and Mr. Herron did so.

We do not have jurisdiction to review this nonfinal order. See Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008). And because the postconviction court did not specify a reasonable time for Mr. Herron to amend the motion, we cannot relinquish jurisdiction for entry of a final order but must dismiss this appeal.

On remand, the postconviction court should first enter a revised order allowing amendment within a reasonable time as dictated by Spera. If Mr. Herron does not amend the motion within the specified time, the court should enter a final order disposing of all of Mr. Herron's claims. If Mr. Herron does amend his motion, the court must consider the amendments in its final disposition. See Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008).

Dismissed and remanded.

WHATLEY and LaROSE, JJ., Concur.


Summaries of

Herron v. State

District Court of Appeal of Florida, Second District
May 7, 2010
34 So. 3d 206 (Fla. Dist. Ct. App. 2010)

explaining that appellate courts do not have jurisdiction to review nonfinal rule 3.850 orders

Summary of this case from Hardy v. State

directing the postconviction court to enter a final order disposing of defendant's claims if defendant failed to file an amended rule 3.850 motion

Summary of this case from Neal v. State

explaining that appellate courts do not have jurisdiction to review rule 3.850 nonfinal orders

Summary of this case from Donaldson v. State
Case details for

Herron v. State

Case Details

Full title:Trenton HERRON, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: May 7, 2010

Citations

34 So. 3d 206 (Fla. Dist. Ct. App. 2010)

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