MIKAEL T. CUYLER
v.
STATE OF FLORIDA
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A trial court must strike a facially insufficient Rule 3.850 motion with leave to amend rather than dismiss with prejudice when the defect is not apparent to be incorrectable.
[1] A trial court must strike a facially insufficient Rule 3.850 postconviction relief motion with leave to amend rather than dismiss with prejudice when the defect is not ap…
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Court's explanation for why dismissal with prejudice was improper
Cuyler filed a Rule 3.850 motion for postconviction relief in Orange County Circuit Court. The trial court dismissed the motion with prejudice as insu…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MIKAEL T. CUYLER,
Appellant,
v. Case No. 5D19-1231
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed August 30, 2019
3.850 Appeal from the Circuit Court for Orange County, Keith F. White, Judge.
Mikael T. Cuyler, Milton, pro se.
Ashley Moody, Attorney General, Tallahassee, and
L.
Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant appeals the dismissal with prejudice of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. While the circuit court correctly found the motion insufficient, Appellant was entitled to receive an opportunity to amend since it is not “apparent that the defect cannot be corrected.” Parsons v. State, 981 So. 2d 1249, 1250 (Fla. 5th DCA 2008). We therefore reverse and remand for the circuit court to strike the motion with leave to file a facially sufficient motion within a reasonable time, provided
2 Appellant can do so in good faith. Boule v. State, 86 So. 3d 1185, 1186 (Fla. 5th DCA 2012).
REVERSED and REMANDED.
ORFINGER, EISNAUGLE and GROSSHANS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Parsons v. State, 981 So. 2d 1249 (Fla. 5th DCA 2008)
- Boule v. State, 86 So. 3d 1185 (Fla. 5th DCA 2012)