Andre v. State

16 So. 3d 179, 2009 Fla. App. LEXIS 10360, 2009 WL 2243895

Opinion

PER CURIAM.

Appellant, Daniel Christopher Andre, appeals the trial court’s order which summarily denies his motion for postconviction relief in which he alleges eleven claims. We affirm the trial court’s summary denial of appellant’s claims except as to point VIII.

In point VIII, appellant claims his counsel was ineffective because he did not move for a speedy trial upon the expiration of the 175-day speedy trial period. Appellant’s motion fails to allege that the state could not have brought him to trial within the recapture period. See Dexter v. State, 837 So.2d 595 (Fla. 2d DCA 2003). Appellant should be given at least one opportunity to amend his facially insufficient motion. Spera v. State, 971 So.2d 754, 762 (Fla.2007).

In accordance with Spera, we reverse the trial court’s summary denial of relief and remand for it to grant appellant leave to amend his motion to sufficiently plead his claim for ineffective assistance of counsel for failure to move for a speedy trial. We affirm as to all other claims.

Affirmed in Part; Reversed in Part and Remanded for Further Proceedings.

GROSS, C.J., POLEN and HAZOURI, JJ., concur.