Green v. State

992 So. 2d 411, 2008 Fla. App. LEXIS 15900, 2008 WL 4569945

Opinion

CASANUEVA, Judge.

Robert Green appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds four, five, six, and eight without comment. We also affirm the denial of Mr. Green’s subclaim in ground two regarding the procedures used in photopack identification. However, we reverse the denial of grounds one, three, seven, and the remainder of the claims in ground two, and we remand for further proceedings.

Although the postconviction court correctly determined that these allegations were legally insufficient, it denied the claims without first granting Mr. Green leave to amend as required by Spera v. State, 971 So.2d 754 (Fla.2007) (holding that the postconviction court should not deny a claim due to a pleading deficiency without first giving the petitioner an opportunity to amend the claim unless the claim is conclusively refuted by the record or the claim could not be made facially sufficient through a “good faith” amendment). Because the limited record before this court fails to conclusively refute these grounds, we remand for the postconviction court to strike these portions of Mr. Green’s motion with leave to amend within a reasonable period of time. See id.; Baldwin v. State, 978 So.2d 257 (Fla. 2d DCA 2008).

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.