Rios v. State

16 So. 3d 260, 2009 Fla. App. LEXIS 11601, 2009 WL 2517051

Opinion

PER CURIAM.

We reverse the summary denial of one point in Anthony Rios’s rule 3.850 motion and remand for further review following Rios’s amendment of his motion. Rios pled to charges of attempted armed robbery. Rios alleges affirmative misadvice of counsel with respect to counsel’s representation that there was insufficient evidence to impeach the victim’s anticipated testimony that she was able to identify Rios as the perpetrator. He claims that had he known of the weakness of the state’s case, he would not have pled to the crime. While he references conflict between the victim’s two pretrial statements, his motion failed to detail the substance of the first statement, the 911 call and the identification given.

Consequently, Rios should have the opportunity to file an amended motion to cure this defect. See Spera v. State, 971 So.2d 754 (Fla.2007). Thereafter, the trial court can revisit the claim. Lynch v. State, 2 So.3d 47, 57 (Fla.2008); Grosvenor v. State, 874 So.2d 1176 (Fla.2004); see also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We affirm the summary denial of the remaining claims.

Affirmed in Part; Reversed in Part and Remanded.

WARNER, STEVENSON and HAZOURI, JJ., concur.