Rivera v. State

16 So. 3d 330, 2009 Fla. App. LEXIS 13776, 2009 WL 2949293

Opinion

PER CURIAM.

Samir Rivera appeals an order summarily denying his motion to vacate convictions and sentences, filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850. We affirm without discussion the summary denial of the first two grounds for relief, filed pursuant to rule 3.800(a). We reverse as to the third ground, filed pursuant to rule 3.850, in which Rivera alleged that his attorney misadvised him that he did not qualify for sentencing as a youthful offender, apparently because one or more of his offenses were life felonies. See § 958.04(l)(e), Fla. Stat. (2004).

As the state points out, this ground was insufficient because Rivera did not explain how this alleged deficiency prejudiced him; he did not allege he otherwise would not have entered his open guilty plea and seek to withdraw it.

We agree with the state that Rivera is entitled to at least one opportunity to correct this pleading deficiency if he can do so in good faith. Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse as to ground three and direct the trial court on remand to strike this claim and allow defendant a reasonable amount of time in which to amend it.

Affirmed, in part, reversed, in part, and remanded.

WARNER, POLEN and DAMOORGIAN, JJ., concur.