LOPEZ
v.
STATE

Fla. 3d DCA | 2019-05-22
No. 3D18-2623
Frank, Ryder, Threadgill
273 So. 3d 1131 Florida District Court of Appeal, Third District (2019) Positive Treatment
Cited by 1 case

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Synopsis

The Florida Third District Court of Appeal reversed a lower court's order that summarily denied a defendant's motion for jail credit. The appellate court found the lower court erred by not allowing the defendant an opportunity to amend his facially insufficient motion.


Holding

Yes, the trial court erred by summarily denying the motion without allowing Lopez an opportunity to amend it.


Headnotes

[1] A trial court must grant a defendant leave to amend a facially insufficient post-conviction motion for correction of jail credit under Florida Rule of Criminal Procedure…

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Key Quotes

“As the State properly and commendably concedes, however, the trial court erred by denying Lopez’s motion without giving him leave to amend the motion.”

Establishes the basis for the appellate court's reversal, acknowledging the State's concession of error.

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Facts & Procedural History

Hector Lopez, the defendant, filed a motion for correction of jail credit under Florida Rule of Criminal Procedure 3.801. The trial court summarily de…

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Opinion of the Court

Third District Court of Appeal

State of Florida

Opinion filed May 22, 2019.

________________

No. 3D18-2623 Lower Tribunal No. 14-9874

________________

Hector Lopez,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Martin Zilber, Judge.

Hector Lopez, in proper person.

Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.

Before LOGUE, SCALES and HENDON, JJ.

ON PARTIAL CONFESSION OF ERROR

PER CURIAM.

Hector Lopez, the defendant below, appeals an order summarily denying his

Florida Rule of Criminal Procedure 3.801 motion for correction of jail credit.

Lopez’s motion is facially insufficient because the motion is not under oath and otherwise fails to contain the contents required by rule 3.801(c). As the State properly and commendably concedes, however, the trial court erred by denying

Lopez’s motion without giving him leave to amend the motion. See Fla. R. Crim. P. 3.801(e) (incorporating the amendment procedure under Florida Rule of

Criminal Procedure 3.850(f)(2) for timely but facially insufficient post-conviction motions); Belanger v. State, 146 So. 3d 136, 137 (Fla. 3d DCA 2014).

Accordingly, we reverse the order under review to allow Lopez to file a facially sufficient rule 3.801 motion within sixty days of the issuance of this Court’s mandate. See Belanger, 146 So. 3d at 137.

Reversed.


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