Brooks v. State

127 So. 3d 702, 2013 WL 6081760, 2013 Fla. App. LEXIS 18435

Opinion

PER CURIAM.

Floyd Brooks appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. His claim is that the trial court failed to consider his timely-filed motion to amend that motion.

A rule 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion. Samuels v. State, 973 So.2d 662 (Fla. 4th DCA 2008); Hyacinthe v. State, 940 So.2d 1280 (Fla. 4th DCA 2006) (citing Gaskin v. State, 737 So.2d 509 (Fla.1999), receded from on other grounds by Nelson v. State, 875 So.2d 579 (Fla.2004)). See also Fla. R.Crim. P. 3.850(e) (effective July 1, 2013).¹ In responding to this court’s order to show cause, the state agrees that the matter should be remanded to allow the amendment.

Reversed and remanded.

CIKLIN, GERBER and LEVINE, JJ., concur.

1 . The rule change does not apply to this case but it permits amendments without leave of court before the trial court enters an order pursuant to subdivision (f)(5) or (f)(6).