CLIFF VERITY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2011-02-25
No. 2D10-2381
SILBERMAN and CRENSHAW, JJ., Concur.
56 So. 3d 77 Florida District Court of Appeal, Second District (2011) Positive Treatment
Cited by 8 cases

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Synopsis

Cliff Verity appealed an order denying his fourteen-ground motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The appellate court affirmed the denial, using the case to clarify proper procedures for ensuring final, appealable orders on the merits in postconviction proceedings.


Holding

The appellate court affirmed the circuit court's final order denying all claims. The court clarified that once a defendant is given an opportunity to amend a facially insufficient claim and either amends it or fails to file an amended motion within the allotted time, the resulting order constitutes a final, appealable disposition on the merits that bars successive postconviction filings of the same claims.


Headnotes

[1] A postconviction motion is subject to dismissal as successive if all claims have been disposed of on the merits, even if a claim was initially dismissed as facially insuf…

[2] The purpose of Spera procedures is to limit defendants to a single postconviction proceeding by ensuring a final, appealable order on the merits after an opportunity to a…

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Key Quotes

“The goal of the procedures adopted in Spera is not to provide defendants with the ability to file additional motions pursuant to rule 3.850 that result in more appealable final orders. Indeed, the goal is just the opposite.”

Establishes the purpose of Spera procedures to limit successive postconviction filings and prevent multiple appeals

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Facts & Procedural History

Verity filed a rule 3.850 motion approximately one month after his direct appeal mandate issued. The circuit court initially denied all claims except …

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

Cliff Verity appeals an order denying his fourteen-ground motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the final order denying all of his claims but write to comment on the circuit court’s use of the appropriate procedures to ensure that the order disposing of Mr. Verity’s motion is a final, appealable order on the merits.

Mr. Verity filed his rule 3.850 motion on January 28, 2010, approximately one month after the mandate issued on his direct appeal. On March 8, 2010, the circuit court issued an order denying all *78claims except ground 11, which asserted that Mr. Verity’s attorney failed to call two potential witnesses for trial. Because this claim was facially insufficient, the court dismissed it pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), with leave to amend within thirty days of the date of that order. Mr. Verity filed an amended motion within the thirty-day limit, and on April 26, 2010, the circuit court issued a final order denying all claims on the merits.

Mr. Verity is now foreclosed from asserting any of these fourteen grounds in another motion for postconviction relief even if he files his motion on or before December 29, 2011, which marks the expiration of his two-year time limit under rule 3.850(b). If he attempts to do so, his motion should be dismissed as successive pursuant to rule 3.850(f). This might appear to be a premature truncation of Mr. Verity’s right to file rule 3.850 motions, yet this is the intent embodied in the Spera decision:

The goal of the procedures adopted in Spera is not to provide defendants with the ability to file additional motions pursuant to rule 3.850 that result in more appealable final orders. Indeed, the goal is just the opposite. Instead of permitting defendants to file multiple motions that are denied or dismissed without reaching the merits, each of which results in a separate appeal, the goal of Spera is to limit most defendants to a single postconviction proceeding under rule 3.850.

Laurrence v. State, 987 So.2d 157, 158 (Fla. 2d DCA 2008). Once the defendant has been given the opportunity to amend a facially insufficient claim, the final order on the motion is a disposition on the merits of all claims, even if the defendant’s attempt to amend the claim results in another insufficiently pleaded ground for relief. A disposition on the merits will also follow if the defendant fails to file an amended motion within the allotted time. See id. at 159; see also Koszegi v. State, 993 So.2d 133, 134 (Fla. 2d DCA 2008). If the defendant then chooses to appeal the disposition, the district court will have a final order for review.

Prior to the implementation of the Spera procedures, this court, in reversing the dismissal of a postconviction motion as successive, observed that “[t]he lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postcon-viction court from dismissing a motion as successive.” Crescenzo v. State, 987 So.2d 150, 151 (Fla. 2d DCA 2008). Similarly, in Frew v. State, 947 So.2d 1275, 1276 (Fla. 2d DCA 2007), we reversed the circuit court’s order dismissing a successive motion under rule 3.850(f) because there was no suggestion that the defendant abused the postconviction procedure when he attempted to file an amended motion.

We anticipate that in the future, orders of the type we reviewed in Crescenzo and Frew will be few and far between as the circuit courts follow the Spera procedure and render one final, appealable order after the defendant has been offered a sufficient time to amend facially insufficient claims.

Affirmed.

SILBERMAN and CRENSHAW, JJ., Concur.


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Citator

Cited By

  • Al Jones v. State, 88 So. 3d 998 (Fla. 2d DCA 2012)
    …11. This court has held that if a defendant fails to amend a facially insufficient motion within the time directed by the postconviction court, the postconviction court shall enter a final order denying the motion on the merits. See Verity v. State, 56 So. 3d 77, 78 (Fla. 2d DCA 2011); Herron v. State, 34 So. 3d 206, 207 (Fla. 2d DCA 2010). Thus, the post-conviction court appropriately denied Mr. Jones’s motion. However, in his initial brief on appeal, Mr. Jones claims that he delivered an amended motion…
  • Wilkerson v. State, 65 So. 3d 585 (Fla. 5th DCA 2011)
    …PER CURIAM. AFFIRMED. See Verity v. State, 56 So. 3d 77 (Fla. 2d DCA 2011). GRIFFIN, LAWSON and EVANDER, JJ., concur.…
  • Kirkpatrick v. State, 100 So. 3d 65 (Fla. 2d DCA 2011)
    …eed thirty days, if Kirkpatrick can do so in good faith. If Kirkpatrick files an amended motion on these grounds and has not cured the facial insufficiencies, the postconviction court may summarily deny the claims on the merits. See Verity v. State, 56 So. 3d 77, 78 (Fla. 2d DCA 2011). If the court summarily denies any facially sufficient amended claims, it must attach to its order portions of the record that conclusively refute Kirkpatrick’s allegations. Affirmed in part, reversed in part, and remanded w…

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