Smith v. State
| Decision Date | 26 October 2012 |
| Docket Number | No. 2D12–1324.,2D12–1324. |
| Citation | 100 So.3d 201 |
| Parties | Robert A. SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Robert A. Smith, pro se.
Robert A. Smith appeals the order summarily denying his amended motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand with directions that the postconviction court address the merits of Mr. Smith's amended motion.
The postconviction court struck Mr. Smith's original rule 3.850 motion for failure to contain an oath and gave him thirty days to amend. See Piper v. State, 21 So.3d 902, 904 (Fla. 2d DCA 2009). Mr. Smith filed an amended motion, but it still failed to contain the required oath. Consequently, the postconviction court summarily denied the amended motion. Mr. Smith then filed a motion for rehearing to which he attached his amended rule 3.850motion that now contained a signed form oath. The postconviction court denied Mr. Smith's motion for rehearing. This was an abuse of discretion under the circumstances of this case.
Generally, when a postconviction movant is given an opportunity to amend a legally insufficient motion and no amendment is forthcoming, the postconviction court may enter an order that is a disposition on the merits. See id.; Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008). Indeed, the postconviction court cited Piper and Lawrence in denying Mr. Smith's second motion. But when a movant does file an amended motion that substantially complies with rule 3.850(c), a postconviction court should address the merits of that motion. See, e.g., Al–Hakim v. State, 87 So.3d 836, 838 (Fla. 2d DCA 2012) ().
Here, Mr. Smith's motion for rehearing cured the insufficiency of his postconviction motion by providing the court with a motion that contained the proper oath. See Washington v. State, 70 So.3d 634, 634 (Fla. 1st DCA 2011) (); see also Golden v. State, 509 So.2d 1149, 1151 (Fla. 1st DCA 1987) (). And Mr. Smith was still within the two-year time limit for filing rule 3.850 motions.
In addition to denying Mr. Smith's motion for rehearing, the postconviction court dismissed his amended motion for postconviction relief as successive. But Mr. Smith's motion could not be dismissed as successive because the merits of his prior motion had never been addressed by the court. SeeFla. R.Crim. P. 3.850(f) ().
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