GARY V. MORELAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Moreland appeals the dismissal of his third postconviction relief motion under Florida Rule of Criminal Procedure 3.850. The court reversed the dismissal, holding that Moreland was entitled to at least one opportunity to amend facially insufficient claims within a specified time period, and that his delay in filing the third motion did not constitute abuse of procedure where he was never informed of the amendment deadline.
The postconviction court erred in dismissing the motion as an abuse of procedure. Moreland was entitled to at least one opportunity to amend the facially insufficient claims within a specified time period (not to exceed thirty days), and because he was never advised of a limited amendment deadline, his filing of a successive motion within the two-year statutory period does not constitute abuse of procedure.
[1] A postconviction court must provide a movant with at least one opportunity to amend facially insufficient claims within a specified time.
[2] A movant's failure to amend facially insufficient claims within a specified time, when no such time was provided, does not constitute an abuse of procedure.
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Join FLexlaw to unlock all legal intelligence“a legally insufficient motion should be stricken with leave to amend, adding that '[w]e do not envision that window of opportunity would exceed thirty days and may be less.'”
Establishes the standard from Spera that facially insufficient motions require leave to amend within a specified timeframe.
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Join FLexlaw to unlock all legal intelligenceMoreland filed three successive rule 3.850 motions for postconviction relief. His first two motions were filed and denied on June 13 and August 21, 20…
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Gary V. Moreland appeals the summary dismissal of his timely motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. This motion, deemed filed on December 12, 2008, when he placed it in the hands of prison officials, was Mr. Moreland’s third rule 3.850 motion. On June 13 and August 21, 2007, the postconviction court denied Mr. More-land’s first and second motions. Several claims were denied as procedurally barred; others — including the two claims of ineffective assistance of counsel asserted in the current motion — were denied as facially insufficient. But neither prior denial order provided Mr. Moreland with leave to amend to correct the facial insufficiencies.
In the order now before us, the postcon-viction court recognized that Mr. Moreland was entitled to at least one opportunity to amend timely filed but facially insufficient claims. And the court recognized that it had not provided Mr. Moreland with a specific time for amendment. The court nevertheless dismissed this motion on the ground that the time for amendment is not unlimited, see Bryant v. State, 901 So.2d 810, 819 (Fla.2005), and by waiting over sixteen months to file this new motion, Mr. Moreland was precluded from attempting to remedy the facially insufficient claims.
This case highlights the procedural difficulties that can arise when a postconviction court denies or dismisses a motion as facially insufficient without giving the mov-ant at least one opportunity to amend within a specified amount of time. Mr. Moreland’s first two motions were filed and denied before the supreme court issued its opinion in Spera v. State, 971 So.2d 754 (Fla.2007). There, the court held that a legally insufficient motion should be stricken with leave to amend, adding that “[w]e do not envision that window of opportunity would exceed thirty days and may be less.” Id. at 761. In disposing of Mr. Moreland’s third motion, the postconviction court should have considered the operative principles embodied in not only Spera but also rule 3.850(f). That rule permits the filing of successive motions within the two-year period contained in rule 3.850(b) if the claims or issues have not previously been decided on the merits. An exception exists for abuse of procedure. See Wilson v. State, 13 So.3d 83, 85 (Fla. 2d DCA 2009). But because Mr. Moreland was never advised that he had a limited period of time in which to file amended claims, rather than the remaining balance of the two-year period after his judgment and sentence became final, it cannot be said that his attempt to assert grounds that were never decided on the merits constitutes such an abuse. See Spera, 971 So.2d at 759.
Accordingly, we reverse the postconviction court’s order. On remand the post-conviction court shall consider the two claims of ineffective assistance of counsel as a timely amendment of those claims dismissed in 2007. The resulting final order will be “a disposition on the merits for all claims that were or could have been raised in that motion.” Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008).
Reversed and remanded.
CRENSHAW and MORRIS, JJ., Concur.
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Brown v. State, 36 So. 3d 186 (Fla. 2d DCA 2010)…r lack of jurisdiction. However, we note that this court has expressed concern as to the practice of dismissing a postconviction motion for facial insufficiency without specifying a reasonable time limit within which to amend. See Moreland v. State, 32 So. 3d 782 (Fla. 2d DCA 2010) (highlighting “the procedural difficulties that can arise when a post-conviction court denies or dismisses a motion as facially insufficient without giving the movant at least one opportunity to amend within a specified amount of…
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Brown v. State, 38 So. 3d 888 (Fla. 2d DCA 2010)…enter a revised order permitting Brown to amend his motion within a reasonable period of time not to exceed thirty days, pursuant to Spera v. State, 971 So. 2d 754 (Fla.2007). See Herron v. State, 34 So. 3d 206 (Fla. 2d DCA 2010); Moreland v. State, 32 So. 3d 782 (Fla. 2d DCA 2010). If Brown does not amend the motion, the postconviction court should enter a final order disposing of Brown’s claims. If Brown does amend his motion, the post-conviction court must consider the amendment in its final disposition.…
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Yancy Bernard Clayton v. State, 43 So. 3d 869 (Fla. 2d DCA 2010)…judice; however, the court did not provide Clayton a reasonable time limit within which to file an amended claim, a practice with which this court has expressed concern. See Brown [*870] v. State, 36 So. 3d 186 (Fla. 2d DCA 2010); Moreland v. State, 32 So. 3d 782 (Fla. 2d DCA 2010). The order also incorrectly advised Clayton that he had thirty days to appeal this nonfinal order to this court. We dismiss this appeal for lack of jurisdiction. See Herron v. State, 34 So. 3d 206 (Fla. 2d DCA 2010). Because Cla…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Bryant v. State, 901 So. 2d 810 (Fla. 2005)
- Mason v. State, 987 So. 2d 157 (Fla. 5th DCA 2008)
- Wilson v. State, 13 So. 3d 83 (Fla. 2d DCA 2009)