GERSON JUAREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gerson Juarez appealed a trial court's summary denial of his post-conviction relief petition under Florida Rule of Criminal Procedure 3.850. The court held that the trial court erred by denying Juarez the statutory right to amend his petition and failed to follow required procedures for determining legal insufficiency.
The trial court erred by summarily denying Juarez's 3.850 petition and denying his motion to amend without following the required procedures. The court must either attach portions of the record conclusively establishing no entitlement to relief, or permit the defendant 60 days to amend the motion to state legally sufficient claims.
[1] A trial court must allow a defendant sixty days to amend a post-conviction relief petition found legally insufficient on its face, provided the petition was timely filed.
[2] A trial court cannot summarily deny a post-conviction relief petition without explaining the specific grounds for insufficiency or attaching record documents that conclus…
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Join FLexlaw to unlock all legal intelligence“the court shall enter a non-final, non-appeal-able order allowing the defendant 60 days to amend the motion”
Establishes the mandatory procedural requirement that courts must allow amendment of insufficient post-conviction petitions
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Join FLexlaw to unlock all legal intelligenceJuarez filed a 3.850 petition for post-conviction relief raising several issues. The trial court summarily denied the petition without explaining whic…
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ON MOTION FOR REHEARING and WRITTEN OPINION
We grant Gerson Juarez’s motion for rehearing of the opinion issued July 13, 2016, and for written opinion. We withdraw our prior opinion and substitute the following opinion in its stead.
On appeal from a summary denial of a petition for post-conviction relief, Juarez argues that he was entitled to an opportunity to amend his 3.850 petition after the trial court denied it for legal insufficiency. We agree. See Fla. R. Crim. P. 3.850(f)(2) (providing that “[i]f the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a non-final, non-appeal-able 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”). The trial court summarily denied Juarez’s 3.850 petition without any explanation of which of the several issues raised were insufficient and for what reasons, and failed to attach any documents that would conclusively show legal insufficiency or no entitlement to relief. Juarez moved on rehearing to be allowed to amend pursuant to rule 3.850(f)(2), but the trial court summarily denied that as well.
*90To the extent the denial of the motion was based upon the legal insufficiency of the motion, the trial court failed to follow the procedure outlined in Spera v. State, 971 So.2d 754 (Fla.2007) when determining that an initial motion for post-conviction relief is legally insufficient. To the extent the denial of the motion was based upon the record, the court failed to attach to its order any portion of the files or record that conclusively shows appellant was not entitled to relief. See Fla. R. Crím. P. 3.850(d). The trial court erred by denying the defendant sixty days to amend pursuant to the rule.
We therefore reverse and remand with directions that the trial court either: 1) enter an amended order that attaches those portions of the files and record that conclusively establish that appellant is entitled to no relief; or 2) permit appellant an opportunity to amend his motion to state legally sufficient claims, and for proceedings thereafter consistent with this opinion. Spera v. State, 971 So.2d 754 (Fla.2007); Belanger v. State, 146 So.3d 136 (Fla. 3d DCA 2014); Nottage v. State, 61 So.3d 1231, 1232-33 (Fla. 3d DCA 2011).
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Yilian Quintana Ramirez v. State, 289 So. 3d 474 (Fla. 3d DCA 2021)…a. 2007) when determining that an initial motion for post-conviction relief is legally insufficient” should have been followed, and the summary denial of the motion, without permitting amendment, constituted an abuse of discretion. Juarez v. State, 215 So. 3d 89, 90 (Fla. 3d DCA 2016); see also Fla. R. Crim. P. 3.850(f)(2) (“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 [sixty] days to a…
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Marhlau Belizaire v. State, 231 So. 3d 536 (Fla. 3d DCA 2017)…lbox rule, timely. ■ The order under review mentions other grounds as bases for denial. We do not address the other grounds because the required .portions of the record were not attached. See Fla. R. Grim. P. 3.850(f)(5). See also Juarez v. State, 215 So. 3d 89, 90 (Fla. 3d DCA 2016); Nottage v. State, 61 So. 3d 1231, 1232-33 (Fla. 3d DCA 2011). On remand, the trial court may either summarily deny the motion and attach to its order those portions of the record which conclusively show that appellant is en…
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Evans v. State (Fla. 3d DCA 2020)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Belanger v. State, 146 So. 3d 136 (Fla. 3d DCA 2014)
- Nottage v. State, 61 So. 3d 1231 (Fla. 3d DCA 2011)