English v. State

District Court of Appeal of Florida

English v. State

7 So. 3d 637, 2009 Fla. App. LEXIS 3256, 2009 WL 1024596

CourtDistrict Court of Appeal of Florida

DecidedApril 17, 2009

Docket5D09-419

StatusPublished

This text of 7 So. 3d 637 (English v. State) 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.

Bluebook

English v. State, 7 So. 3d 637, 2009 Fla. App. LEXIS 3256, 2009 WL 1024596 (Fla. Ct. App. 2009).

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Opinion

*638 PER CURIAM.

Demetris English appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court correctly dismissed the motion because it failed to include the required oath, see Anderson v. State, 627 So.2d 1170 (Fla.1993), but failed to allow English at least one opportunity to amend the pleading. Under most circumstances, this failure to allow an opportunity to amend would constitute a reversible abuse of discretion. Spera v. State, 971 So.2d 754, 755 (Fla.2007). However, English’s own pleadings demonstrate the futility of amendment. English entered a plea and was sentenced on October 5, 2006. Thus, his judgment and sentence necessarily were final for rule 3.850 purposes on November 4, 2006. Because English did not file his motion until December 15, 2008, 1 the trial court properly dismissed the motion without leave to amend.

AFFIRMED.

SAWAYA, EVANDER and COHEN, JJ., concur.

1

. The certificate of service on the motion for postconviction relief is dated November 13, 2008. Even if that earlier date were utilized, the motion was untimely.

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*638 PER CURIAM.

Demetris English appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court correctly dismissed the motion because it failed to include the required oath, see Anderson v. State, 627 So.2d 1170 (Fla.1993), but failed to allow English at least one opportunity to amend the pleading. Under most circumstances, this failure to allow an opportunity to amend would constitute a reversible abuse of discretion. Spera v. State, 971 So.2d 754, 755 (Fla.2007). However, English’s own pleadings demonstrate the futility of amendment. English entered a plea and was sentenced on October 5, 2006. Thus, his judgment and sentence necessarily were final for rule 3.850 purposes on November 4, 2006. Because English did not file his motion until December 15, 2008, 1 the trial court properly dismissed the motion without leave to amend.

AFFIRMED.

SAWAYA, EVANDER and COHEN, JJ., concur.

1

. The certificate of service on the motion for postconviction relief is dated November 13, 2008. Even if that earlier date were utilized, the motion was untimely.

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7 So. 3d 637, 2009 Fla. App. LEXIS 3256, 2009 WL 1024596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/english-v-state-fladistctapp-2009.

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