Opinion
No. 3D18-2319
08-14-2019
Domonique SMITH, Appellant, v. The STATE of Florida, Appellee.
Domonique Smith, in proper person. Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
Domonique Smith, in proper person.
Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
Before EMAS, C.J., and FERNANDEZ and LINDSEY, JJ.
PER CURIAM.
Domonique Smith filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Without directing or receiving a response from the State, the trial court entered a final order summarily denying the motion as legally insufficient. In doing so, the trial court erred. It is well-established that where the trial court denies a timely rule 3.850 motion as "insufficient on its face, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion." Fla. R. Crim. P. 3.850(f)(2) ; see also Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (holding that where "a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion"); Brown v. State, 252 So. 3d 332 (Fla. 3d DCA 2018) ; Charles v. State, 193 So. 3d 46, 47 (Fla. 3d DCA 2016) (holding: "To the extent that a postconviction claim is conclusory or otherwise facially insufficient, the trial court should not deny the claim on its merits, but instead should enter a nonfinal order that provides the defendant the opportunity to amend the motion to state a legally sufficient claim for relief"); Marckson v. State, 151 So. 3d 44 (Fla. 3d DCA 2014) (reversing order summarily denying 3.850 motion as legally insufficient and remanding cause for trial court to permit defendant to file an amended motion within sixty days); Anderson v. State, 67 So. 3d 1180 (Fla. 3d DCA 2011).
Although Smith filed his motion beyond the two-year time limitation provided under rule 3.850(b), he alleged in the motion that it was timely because the claim was based upon newly-discovered evidence. Rule 3.850(b)(1) permits the filing of a motion more than two years after the judgment and sentence are final if it alleges that "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence."
Accordingly, we reverse the order on review and remand this cause for the trial court to permit Smith an opportunity to file a facially sufficient motion within sixty days, and for further proceedings thereafter as may be appropriate.
Reversed and remanded.