AMBER MALTESE
v.
STATE OF FLORIDA
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A pro se defendant raising an ineffective assistance of counsel claim must specify the particular defense counsel failed to present, and if the claim is legally insufficient but correctable, the trial court must allow amendment before summary denial.
[1] An ineffective assistance of counsel claim under Florida Rule of Criminal Procedure 3.850 must specify the particular defense that counsel failed to present; a claim alle…
[2] When a pro se defendant's postconviction relief claim is legally insufficient but the defect is correctable and the defendant has not previously been afforded an opportun…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While Maltese's claim as drafted is legally insufficient, it is not apparent from the record that the defect cannot be corrected. Because she has not previously sought or been given leave to amend her motion, and because the pleading deficiency in claim three is correctable, Maltese should have been given at least one opportunity to amend her claim.”
Court's explanation for reversing the summary denial of claim three
Amber Maltese appealed a summary denial of her pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, raising six cla…
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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
AMBER MALTESE,
Appellant,
v. Case No. 5D21-927 LT Case No. 05-2015-CF-025866
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed October 1, 2021
3.850 Appeal from the Circuit Court for Brevard County, Tesha Ballou, Judge.
Amber Maltese, Ocala, pro se.
No Appearance for Appellee.
HARRIS, J.
Amber Maltese appeals an order summarily denying her pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Maltese raised six claims for postconviction relief, including a claim of cumulative error. We affirm without further discussion the summary denial of
In claim three, Maltese argued that her trial counsel was ineffective for failing to present a viable defense but did not indicate the specific defense that counsel could have raised. While Maltese’s claim as drafted is legally insufficient, it is not apparent from the record that the defect cannot be corrected. Because she has not previously sought or been given leave to amend her motion, and because the pleading deficiency in claim three is correctable, Maltese should have been given at least one opportunity to amend her claim. Lamb v. State, 202 So. 3d 118 (Fla. 5th DCA 2016). We therefore reverse the summary denial of claim three and remand with directions that the postconviction court provide Maltese with sixty days to amend this claim if, in good faith, she can do so.
AFFIRMED in part; REVERSED in part; REMANDED.
EISNAUGLE and WOZNIAK, JJ., concur.