Opinion
No. 3D19-1327
11-27-2019
Lashundra Antoinette FAIR, Appellant, v. The STATE of Florida, Appellee.
Lashundra Antoinette Fair, in proper person. Ashley Moody, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
Lashundra Antoinette Fair, in proper person.
Ashley Moody, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
Before EMAS, C.J., and FERNANDEZ and MILLER, JJ.
EMAS, C.J.
Lashundra Antoinette Fair appeals the trial court's order summarily denying her timely-filed motion for postconviction relief, alleging ineffective assistance of counsel. We affirm in part and reverse in part. We hold that the trial court properly denied Claims Two and Three. As to Claim One, however, we hold that the claim as pleaded was facially insufficient, and the trial court should not have denied it on the merits but should instead have permitted Fair an opportunity to amend the motion to state a facially sufficient claim. See, e.g., Williams v. State, 175 So. 3d 349 (Fla. 3d DCA 2015) ; Spera v. State, 971 So. 2d 754 (Fla. 2007) ; Fla. R. Crim. P. 3.850(f)(2) (providing: "If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion. If the amended motion is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court, in its discretion, may permit the defendant an additional opportunity to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice.")
Because Fair will be permitted an opportunity to amend Claim One, the trial court may ultimately address the merits of that claim. Should the trial court reach the merits, we offer this observation: the one-page preprinted plea form purporting to be signed by Fair and attached to the order of summary denial, would appear insufficient by itself to conclusively establish that Fair is entitled to no relief on a sufficiently pleaded claim. See Koenig v. State, 597 So. 2d 256 (Fla. 1992) ; Cendejas v. State, 250 So. 3d 851, 854 (Fla. 2d DCA 2018) ; Joseph v. State, 782 So. 2d 895 (Fla. 2d DCA 2001) ; Garcon v. State, 23 So. 3d 1286 (Fla. 4th DCA 2010) ; Townsend v. State, 927 So. 2d 1064 (Fla. 4th DCA 2006) ; Hen Lin Lu v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996).
The trial court, in denying relief on the merits, concluded that the one-page preprinted plea form, standing alone, conclusively refuted Fair's Claim One. On appeal, the State commendably conceded that the trial court erred in this regard.
--------
We affirm the trial court's order insofar as it denied Claims Two and Three. We reverse the trial court's order as to Claim One only, and remand with directions to enter an order permitting Fair 60 days within which to file an amended motion to state a facially sufficient claim for relief, and for further proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded with directions.