Garrett v. State

District Court of Appeal of Florida

Garrett v. State

111 So. 3d 952, 2013 WL 1687863, 2013 Fla. App. LEXIS 6462, 38 Fla. L. Weekly Fed. D 868

CourtDistrict Court of Appeal of Florida

DecidedApril 19, 2013

DocketNo. 5D12-3841

StatusPublished

This text of 111 So. 3d 952 (Garrett 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

Garrett v. State, 111 So. 3d 952, 2013 WL 1687863, 2013 Fla. App. LEXIS 6462, 38 Fla. L. Weekly Fed. D 868 (Fla. Ct. App. 2013).

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Opinion

PER CURIAM.

Cassandra Garrett appeals the summary denial of her original and amended motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of all claims, except claim five, which was insufficiently pled. In claim five, Garrett alleges defense counsel was ineffective for failing to file a motion to withdraw plea. However, she fails to articulate which plea she believes counsel should have sought to withdraw and fails to identify any specific basis upon which defense counsel might have advanced such a motion. Inasmuch as claim five is legally insufficient, Garrett should be given at least one opportunity to correct the deficiency. See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse the trial court’s summary denial of claim five, and remand with instructions to strike this claim with leave to amend within a specified time consistent with the parameters identified in Spera. See, e.g., Boule v. State, 86 So.3d 1185, 1186 (Fla. 5th DCA 2012); Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PALMER, COHEN and BERGER, JJ., concur.

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PER CURIAM.

Cassandra Garrett appeals the summary denial of her original and amended motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of all claims, except claim five, which was insufficiently pled. In claim five, Garrett alleges defense counsel was ineffective for failing to file a motion to withdraw plea. However, she fails to articulate which plea she believes counsel should have sought to withdraw and fails to identify any specific basis upon which defense counsel might have advanced such a motion. Inasmuch as claim five is legally insufficient, Garrett should be given at least one opportunity to correct the deficiency. See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse the trial court’s summary denial of claim five, and remand with instructions to strike this claim with leave to amend within a specified time consistent with the parameters identified in Spera. See, e.g., Boule v. State, 86 So.3d 1185, 1186 (Fla. 5th DCA 2012); Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PALMER, COHEN and BERGER, JJ., concur.

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Bluebook (online)

111 So. 3d 952, 2013 WL 1687863, 2013 Fla. App. LEXIS 6462, 38 Fla. L. Weekly Fed. D 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-state-fladistctapp-2013.

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