Charles Kelly v. State of Florida

District Court of Appeal of Florida

Charles Kelly v. State of Florida

212 So. 3d 538, 2017 Fla. App. LEXIS 3300

CourtDistrict Court of Appeal of Florida

DecidedMarch 10, 2017

DocketCASE NO. 1D16-3020

StatusPublished

This text of 212 So. 3d 538 (Charles Kelly v. State of Florida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Charles Kelly v. State of Florida, 212 So. 3d 538, 2017 Fla. App. LEXIS 3300 (Fla. Ct. App. 2017).

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Opinion

PER CURIAM.

Appellant, Charles Kelly, appeals the trial court’s summary denial of his motion for postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of claims one through three that were raised in the section of his motion entitled “Arguments.” However, appellant also raised seven claims of ineffective assistance of counsel in a preceding section entitled “Supporting Facts.” The trial court’s order failed to address these claims. Appellant filed a motion for rehearing in which he made it clear that the items in his “Supporting Facts” section were, in fact, separate claims for relief. The trial court denied rehearing, did not address the additional claims, and did not allow appellant to amend his motion. We, therefore, reverse as to the ineffective assistance of counsel claims contained in the “Supporting Facts” section and remand for the trial court to consider them. See Purse v. State, 185 So.3d 627, 627 (Fla. 5th DCA 2016) (citing Gonzalez v. State, 829 So.2d 323, 324 (Fla. 2d DCA 2002)); Bridges v. State, 81 So.3d 616, 618 (Fla. 5th DCA 2012). If the trial court determines that these claims are facially insufficient, appellant should be given an opportunity to amend them pursuant to Spera v. State, 971 So.2d 754 (Fla. 2007).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.

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PER CURIAM.

Appellant, Charles Kelly, appeals the trial court’s summary denial of his motion for postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of claims one through three that were raised in the section of his motion entitled “Arguments.” However, appellant also raised seven claims of ineffective assistance of counsel in a preceding section entitled “Supporting Facts.” The trial court’s order failed to address these claims. Appellant filed a motion for rehearing in which he made it clear that the items in his “Supporting Facts” section were, in fact, separate claims for relief. The trial court denied rehearing, did not address the additional claims, and did not allow appellant to amend his motion. We, therefore, reverse as to the ineffective assistance of counsel claims contained in the “Supporting Facts” section and remand for the trial court to consider them. See Purse v. State, 185 So.3d 627, 627 (Fla. 5th DCA 2016) (citing Gonzalez v. State, 829 So.2d 323, 324 (Fla. 2d DCA 2002)); Bridges v. State, 81 So.3d 616, 618 (Fla. 5th DCA 2012). If the trial court determines that these claims are facially insufficient, appellant should be given an opportunity to amend them pursuant to Spera v. State, 971 So.2d 754 (Fla. 2007).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.

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212 So. 3d 538, 2017 Fla. App. LEXIS 3300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-kelly-v-state-of-florida-fladistctapp-2017.

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