Summary
holding that Spera allows the defendant one opportunity to cure the deficient claims within 30 days, and if no amendment is filed within the allowed time, claims may be denied with prejudice
Summary of this case from Allen v. JonesOpinion
No. 1D07-0648.
January 18, 2008.
Appeal from the Circuit Court, Duval County, Henry E. Davis, J.
Robert L. Prevost, pro se, Appellant.
Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges an order by which his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief was denied. We affirm in part and reverse in part.
The appellant argues the trial court erred in denying several of his claims as facially insufficient without providing him the opportunity to amend those claims. Because an opportunity to amend facially insufficient claims is required by Spera v. State, 971 So.2d 754 (Fla. 2007), we reverse the trial court's denial of those claims which the court found to be facially insufficient, including the appellant's claims that defense counsel was ineffective for failing to interview all of the witnesses to the victim's death and that defense counsel was ineffective for failing to apprise him of significant information prior to the appellant entering his plea and receiving his sentence. We remand with directions that the trial court afford the appellant thirty days in which to cure the deficiencies in those claims found to be facially insufficient. If no amendment is filed within the time allowed, the denial of the appellant's facially insufficient claims may be with prejudice. We affirm the denial of the other claims raised by the appellant, as the trial court properly denied them on their merits.
ALLEN, KAHN, and DAVIS, JJ., concur.