Melvin Perez Continuation on Post-Conviction Remedies !

The purpose of these articles are to educate prisoner's of their post conviction options. Post conviction refers to any motion or petition that is filed after a person is convicted. IN this article I will cover amending a post conviction motion filed under Rule 3.850, Florida Rules of Criminal Procedure and applicable law. A) SPERA V STATE. Prior to Spera v State, 971 So.2d 754( Fla.2007), cases consistently held that the trial court was required to grant defendant's motion to dismiss a post conviction claim without prejudice, so long as it was filed before the court ruled on the underlying claim and dismissal would not cause prejudice to the state. See: Hutchinson v State, 921 So.2d 780, 781(Fla.1stDCA 2006) Hansen v State, 816 So. 2d 808, 809( Fla. 1st DCA 2002) See also, Clark v State, 491 So. 2d 545( Fla.1986) Carvalleria v State, 675 So.2d 251(Fla. 3rd DCA 1996) Washington v State, 937 So. 2d 271, 272 (Fla. 4th DCA 2006). However, the process for evaluating post conviction motions changed with Spera. Spera held that when a trial court summarily denies a defendant's motion for post conviction relief for failure to meet pleading requirements, it must give the defendant the opportunity to amend the motion. Spera at 761. See also Wilson v State, 13 So.3d 83, 85(Fla. 2DCA 2009) Watson v State, 975 So.2d 572, 573( Fla. 1stDCA 2008). This does not mean post conviction defendant's have unlimited opportunities to amend a facially insufficient motion. Spera requires only that courts give defendants one opportunity to amend. See, Oquendo v State, 2 So.3d 1001, 1006(Fla. 4thDCA 2008) Prevost v State, 972 So.2d 274, 275( Fla.1stDCA 2008). After one opportunity is given , courts are not required to give additional chances. See, Nelson v State, 977 So.2d 710, 711( Fla. 1st DCA 2008)( Stating "[a]lthough a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera does not mandate repeated opportunities"). In light of Spera, it seems there are certain circumstances where a trial court is still required to grant post conviction defendant's motion to dismiss without prejudice and certain circumstances where it can exercise discretion regarding such motions. For example, if a defendant moves to dismiss a post conviction motion without prejudice before a trial court has issued a ruling -meaning before the court has evaluated the underlying motion for legal sufficiently-the motion should be granted, so long as it is not prejudicial to the state. This aligns with the pre-Spera cases stating a trial court should grant a defendant's motion to dismiss without prejudice unless it has ruled upon the underlying post conviction claims. But, the situation changes once the defendant is given the opportunity to amend. Therefore, if the defendant has already had that chance, a court is not obligated to extend yet another opportunity by granting a subsequent motion to dismiss without prejudice. Otherwise a defendant could attempt to circumvent Spera by following each amended post conviction motion with a motion to dismiss without prejudice, thereby prolonging the post conviction process. In short, when a post conviction defendant moves to dismiss his or her motion without prejudice, the trial court must determine whether a previous order gave the defendant an opportunity to amend pursuant to Spera. If no such order was issued, the motion to dismiss should be granted unless it will cause prejudice to the state. However, if such an order was issued, the disposition of the motion to dismiss should be left to the trial court's discretion and the court is not required to grant it. This reasoning is consistent with how the First District Court of Appeal has treated motions to dismiss post conviction claims following Spera. Since then, the only case from the First DCA dealing with a motion to voluntarily dismiss a post conviction claim has been Davis v State, 28 So.3d 168( Fla1stDCA 2010). Davis does not indicate whether the defendant was given an opportunity to amend under Spera. It states only that defendant filed a motion for voluntary dismissal prior to the denial of his post conviction motion on the merits. id at 169. Under such circumstances, the motion to dismiss should have been granted without prejudice, which is what the First DCA found. id. B) STANDARD. The standard of review for a trial court's determination regarding a motion to amend a rule 3.850 motion is whether there was an abuse of discretion. Huff v State, 762 So.2d 476,481(Fla 2000)(citing McConn v State, 708 So.2d 308, 310(Fla.2d DCA 1998)). C) MOTION TO RELATE BACK AND SHELL MOTION. Appellate courts apply a de novo standard of review when the construction of a procedural rule... is at issue." Barco v School Bd. of Pinellas Cnty., 975 So.2d 1116, 1121(Fla.2008). Numerous post conviction cases in Florida refer to a defendant's shell motion and subsequent filing of an amended motion for post conviction relief. See, Hartley v State, 990 So.2d 1108, 1111(Fla.2008)(shell motion filed initially, amended motion filed later) Branch v State, 952 So.2d 470, 474(Fla.2006)(shell motion filed on May 7, 1998, and second amended motion filed April 1, 2003) Miller v State, 926 So.2d 1243, 1248 (Fla. 2006)(Shell motion filed September 27, 2001, and amended motion filed March 11, 2002). In Bryant v State, 901 So.2d 810(Fla. 2005), the U.S. Supreme Court noted that Florida Rule of Civil Procedure 1.190(c)* applies to post conviction cases and concluded that Bryant's amended motion would have related back to the date of Bryant's original filing. Id. at 818. Similarly, in Spera the court relied on Bryant and noted that Bryant, "[w]hat we disapproved was the court's failure, when striking the original motion, to grant leave to amend at that time so that the amended motion would relate

back to the date of the original." Spera at 760-61. To accomplish this end, the Florida Supreme Court concluded that it would "allow all defendants an opportunity to amend facially insufficient post conviction claims." Id. D) INSUFFICIENTLY-PLEADED CLAIMS. Florida court require that a post conviction movant describe with sufficient detail the factual support for a claim or the claim may be summarily denied. "The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden." Atwater v State, 778 So.2d 223, 229( Fla. 2001). See also, Morgan v State, 991 So.2d 835, 841( Fla. 2008). In Spera, however, the Florida Supreme Court determined that a trial court abuses its discretion when it fails to provide a post conviction movant at least one opportunity to amend a legally insufficient post conviction motion that fails to meet pleading requirements. Nevertheless, Spera did not expressly disturb the long line of precedent permitting summary denial of conclusory claims. Cf. Baldwin v State, 978 So.2d 257 (Fla.2dDCA 2008)(reversing denial of conclusory claim and remanding with directions to strike the insufficient claim). The Florida Supreme Court's decision in Morgan, Supra and Doorbal, issued after Spera and did not give the post conviction movants an opportunity to amend the conclusory claims. Doorbal v State, 983 So.2d 464(Fla. 2008). E) APPLYING SPERA. Although Spera may increase the post conviction workload of the court system in the short run, if consistently applied by trial courts, Spera may ultimately reduce the burden on trial and appellate courts by ensuring that post conviction challenges are fully and fairly resolved in a single proceeding instead of in a piecemeal fashion. Piecemeal litigation of claims can be avoided by adherence to the principle announced in Spera. Because a movant now has the opportunity to correct a pleading deficiency during the initial proceedings on a motion, the rule announced in Spera has supplanted the case law that permitted successive motion if a prior motion was not determined on the merits. Nelson v State, 977 So.2d 710(Fla. 1stDCA 2008)(holding that, after giving the defendant the one opportunity to amend required Spera, if no amendment is filed or if the claim is again insufficient, the claim can be denied with prejudice). See also, Nelson v State, 875 So.2d579, 584(Fla. 2004). Spera suggests that an insufficient motion should be stricken, but did not describe the procedure to be followed where a post conviction motion contains numerous claims only some of which are insufficient. The First DCA's decision in Nelson describes a way to implement Spera that permits resolution of the entire motion, including insufficient claims, in one proceeding. 977 So.2d at 711-12. Using the procedure suggested in Nelson, a trial court should first determine whether any claims in the motion are insufficient. Id. at 711. The court should then permit the movant a reasonable opportunity to amend insufficient claims unless the deficiency cannot be cured. Spera suggested that normally a "reasonable" period of time would not exceed thirty days. 971 So.2d at 761. After permitting an opportunity to amend, if the movant does not amend the insufficient claims, or if the amended claims are again insufficient, the court may decide the entire motion on the merits and deny the insufficient claims with prejudice. As long as a post conviction movant has been afforded at least one opportunity to amend an insufficient claim, the trial court has discretion as to whether to permit any further amendment. Spera at 761_________________________________________________________________ * Rule 1.190(c) provides that"[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading."

Melvin Perez #x11781

Franklin C.I.

1760 Highway 67 North Carrabelle, Florida 32322

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