Spera v. State

• Decision Date: 01 November 2007
• Docket Number: No. SC06-1304.,SC06-1304.
• Citation: 971 So.2d 754
• Parties: Theodore SPERA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

971 So.2d 754

Theodore SPERA, Petitioner, v. STATE of Florida, Respondent.

No. SC06-1304.

Supreme Court of Florida.

November 1, 2007.

Rehearing Denied December 26, 2007.

[971 So.2d 755]

Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Senior Assistant Attorney General, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, FL, for Respondent.

CANTERO, J.

This case involves a narrow issue of law that begs a broader resolution. It stems from our decision in Nelson v. State, 875 So.2d 579, 581 (Fla.2004), where we held that a defendant claiming ineffective assistance of counsel for failing to call witnesses at trial must allege that the witness was available to testify. We allowed the defendant to amend the claim to add such an allegation. In the case under review, the Fourth District Court of Appeal applied Nelson narrowly, holding that it allowed amendments to postconviction motions to remedy only "technical omissions," not a complete failure of pleading. Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006) (en banc). That holding conflicts with the Second District Court of Appeal's decision in Keevis v. State, 908 So.2d 552 (Fla. 2d DCA 2005), which applied Nelson more broadly to other pleading deficiencies in a claim alleging counsel's failure to call witnesses at trial and also noted the need for a consistent approach for all postconviction claims. We granted review to resolve the conflict. See art. V, § 3(b)(3), Fla. Const.; Spera v. State, 945 So.2d 1291 (Fla.2006) (granting review). Having reviewed the briefs and heard argument on the issue, we are convinced that a narrow resolution of this issue will lead to confusion and further litigation over which deficiencies justify amendment. Accordingly, to establish uniformity in the criminal postconviction process, we hold that in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.

I. FACTS

Spera was convicted of fleeing or attempting to elude a law enforcement officer and burglary of an occupied dwelling. His conviction was affirmed. See Spera v. State, 833 So.2d 150 (Fla. 4th DCA 2002). He then filed a postconviction motion alleging that trial counsel was ineffective because he failed to "call witnesses on Defendant's behalf, although he had been instructed to do so." The trial court found the claim facially insufficient and dismissed the case.

On appeal, the district court considered our recent decisions in Nelson and Bryant v. State, 901 So.2d 810 (Fla.2005), and concluded that under these circumstances they did not require a trial court to permit an amendment. The court, acting en banc, unanimously receded from its panel decision in Frazier v. State, 912 So.2d 54, 56 (Fla. 4th DCA 2005), to the extent it required leave to amend any facially insufficient claim that counsel was ineffective for failing to call witnesses. Spera, 923 So.2d at 545-46.

II. DISCUSSION OF LAW

We now review the applicable law and apply it to this case. In the following sections, we begin by examining the conflict on this issue between the Second and Fourth District Courts of Appeal. We then review the pleading requirements for postconviction motions under Florida Rule of Criminal Procedure 3.850 and United States Supreme Court precedent, as well as the opportunities defendants currently have to remedy insufficient motions by filing either amended motions or successive ones. We then review our recent decision in Bryant, which allowed defendants sentenced to death an opportunity to amend insufficient pleadings. Finally, we apply the holding in Bryant to all criminal defendants.

A. The Conflict in the Courts

In Spera, the Fourth District recognized conflict with the Second District's decision in Keevis. Spera, 923 So.2d at 546. This conflict arises from the courts' divergent interpretations of our decision in Nelson, 875 So.2d at 581. In that case, a defendant's postconviction motion alleged that counsel was ineffective for failing to call, interview, or investigate witnesses for trial. We held that in addition to alleging the identity of the witnesses, the substance of their testimony, and how the defendant was prejudiced, a movant must allege that the witness was available to testify at trial. Nelson, 875 So.2d at 584. The defendant had not done so, and we allowed him to amend his claim. We also outlined a procedure for amending a facially insufficient claim in that context:

We do not, however, want postconviction relief to be denied simply because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. Therefore, when a defendant fails to allege that a witness would have been available, the defendant should be granted leave to amend the motion within a specified time period. If no amendment is filed within the time allowed, then the denial can be with prejudice.

Id. at 583-84.

Initially, both the Second and Fourth Districts applied Nelson broadly. That is, whether the movant failed to include one or all of the allegations required for a claim that counsel failed to call witnesses, both courts held that the defendant must be allowed to amend the claim. See, e.g., Sage v. State, 905 So.2d 1039, 1042 (Fla. 2d DCA 2005) (allowing the defendant to amend a claim that omitted the identity and availability of the witnesses and the substance of their testimony); Frazier v. State, 912 So.2d 54, 56 (Fla. 4th DCA 2005) (holding that where the defendant "failed to include any of the key allegations," Nelson required an opportunity to amend the claim). In Keevis, the Second District reiterated its prior view. 908 So.2d at 553. The court also noted that allowing amendment of claims for failure to call witnesses, but not of other ineffective assistance claims, presented a "need for uniformity in the procedure for addressing" all facially insufficient claims. Id. at 554.

In contrast, the Fourth District in Spera receded from its prior broad application of Nelson:

Our review of Nelson reflects that the supreme court was recognizing that when the movant has failed to allege whether the missing witnesses were available to testify at trial, a period of time to allow for an amendment should be granted. 875 So.2d at 583-84. However, we do not read the Nelson opinion as extending this relief from an essentially technical omission to the point where a movant who wholly fails to present sufficient facts as to any aspect of a claim of prejudice should, automatically be granted leave to amend the motion.

....

On further consideration, we do not interpret Nelson as encompassing the extended application we mandated by Frazier. But see Keevis v. State, 908 So.2d 552 (Fla. 2d DCA 2005) (broadly applying Nelson to encompass any omission in pleading). We conclude that if the supreme court intended to announce a requirement that when any post-conviction motion fails to meet any pleading requirement for post-conviction relief, an order denying relief must deny relief with leave to amend, it would certainly have stated such a requirement more explicitly.

Spera, 923 So.2d at 545. The Fourth District concluded that under Nelson amendments should be permitted only where the defendant omitted the "technical" requirement of alleging a witness's availability. Because Spera's claim did not include any of the required allegations, the court concluded that he was not entitled to amend the claim.

Thus, the Fourth District reads our decision in Nelson narrowly to apply only where the pleading deficiency is a "technical omission" — such as the element of the claim involved in Nelson; while Keevis reads it as applying broadly to any pleading deficiency.

We now review the requirements for filing and amending motions for postconviction relief.

B. Pleading Requirements Under the Rule and Strickland¹

The general requirements for filing a motion to vacate a criminal judgment and sentence, known as postconviction motions, are outlined in Florida Rule of Criminal Procedure 3.850.² The rule lists the available grounds for filing a motion, establishes deadlines, and outlines the required contents of a motion. These include the "nature of the relief sought" and "a brief statement of the facts (and other conditions) relied on in support of the motion." Fla. R.Crim. P. 3.850(a)-(c). Because most postconviction motions are filed pro se, the rules also contain a form to help defendants file their motions. See Fla. R.Crim. P. 3.987. This form explains that the defendant must "[s]tate concisely every ground on which [the defendant] claim[s] that the judgment or sentence is unlawful" and lists the "most frequently raised grounds for postconviction relief," including the ineffective assistance of counsel.

Although the form advises defendants to include facts supporting each claim, neither the rule nor the form explains the pleading requirements for a claim of ineffective assistance of counsel. Those requirements were established years ago in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that case, the United States Supreme Court created a two-pronged test. The deficient performance prong requires a defendant to identify specific acts or omissions of counsel that are "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. The prejudice prong requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A motion claiming ineffective assistance of counsel must include facts establishing both deficient performance of counsel and...