Summary
holding that denial of a postconviction motion without prejudice and with leave to amend is not a final, appealable order
Summary of this case from Hernandez-Alberto v. Sec'y, Fla. Dep't of Corr.Opinion
No. 5D07-3265.
March 7, 2008.
Appeal from the Circuit Court, Osceola County, Scott Polodna, J.
Michael A. Howard, Raiford, pro se.
No Appearance for Appellee.
Defendant, Michael A. Howard, appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.
Although the appealed order denied the motion, the order specified that denial was without prejudice to amend any claims found in the order to be "insufficient." This court and others have concluded that such an order lacks finality and the courts of appeal lack jurisdiction to review it. Kelly v. State, 969 So.2d 1159 (Fla. 4th DCA 2007); Quilling v. State, 968 So.2d 1034 (Fla. 5th DCA 2007); Lee v. State, 939 So.2d 154 (Fla. 1st DCA 2006).
We note, for the benefit of the trial courts, that the procedure recently detailed by the Supreme Court in Spera v. State, 971 So.2d 754 (Fla. 2007), calls for a legally insufficient motion to be stricken, with leave to amend. The notion of a denial with leave to amend is a concept somewhat foreign to the usual work of the criminal courts and, hence, to their users. Therefore, we explain that, for purposes of jurisdiction, we will treat an order striking a motion with leave to amend and one denying a motion with leave to amend equivalently. If leave to amend has been given by the trial court, a defendant may not appeal until he has obtained a denial of the motion that does not include leave to amend.
DISMISSED.
PALMER, C.J. and TORPY, J., concur.