ROBERT E. LOVELAND v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: July 17, 2024
• Docket: 2023-0057
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-0057 Lower Tribunal Nos. 14-CF-331 and 14-CF-14249 _____________________________

ROBERT E. LOVELAND,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

Appeal from the Circuit Court for Lee County. Bruce E. Kyle, Judge.

July 17, 2024

LAMBERT, B.D., Associate Judge.

Robert E. Loveland appeals the postconviction court’s final order denying his

Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. 1 We

affirm the denial of grounds one, two, and four of the motion without further

discussion. For the following reasons, we reverse the court’s denial of the remaining

grounds.

1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. Loveland was convicted after trial of first-degree felony murder, robbery with

a firearm, armed burglary of a dwelling with an assault and battery, and felony

battery. He was sentenced to serve life in prison for the first three convictions and

to ten years in prison for the felony battery, with all sentences ordered to be served

concurrently. Loveland’s convictions and sentences were affirmed without opinion

by the Second District Court of Appeal. Loveland v. State, 240 So. 3d 676 (Fla. 2d

DCA 2017).

Loveland’s instant pro se motion for postconviction relief was timely filed

and included five claims for relief. Grounds three and five alleged that Loveland’s

trial counsel was ineffective for failing to call an exculpatory witness to testify at

trial and in abandoning a previously agreed upon theory of defense in favor of a “do

nothing” strategy. The postconviction court summarily denied these two grounds of

Loveland’s motion for being legally insufficient.

Loveland argues on appeal that the postconviction court erred in denying these

two grounds without first providing him with an opportunity to file an amended

motion. We agree. Rule 3.850(f)(3) provides, in pertinent part:

(3) Timely Motions Containing Some Insufficient Claims. If the motion sufficiently states 1 or more claims for relief and it also attempts but fails to state additional claims, and the motion is timely filed under this rule, the court shall enter a nonappealable order granting the defendant 60 days to amend the motion to sufficiently state additional claims for relief.

2 Fla. R. Crim. P. 3.850(f)(3); see also Spera v. State, 971 So. 2d 754, 761 (Fla. 2007)

(holding that a trial court abuses its discretion when it has determined the initial rule

3.850 motion to be legally insufficient but then fails to allow the defendant at least

one opportunity to amend). Accordingly, we reverse and remand with directions that

Loveland be given sixty days to file an amended motion that sufficiently alleges his

claims for relief in grounds three and five.

Loveland separately argues that the postconviction court reversibly erred

when it refused to consider his subsequently-filed proposed amended motion for

postconviction relief, which added grounds six and seven, because it had not been

filed in the court file. At the time, the postconviction court had not issued an order

on Loveland’s initial rule 3.850 motion; and Loveland had correctly sought leave to

amend his motion. See Fla. R. Crim. P. 3.850(e). Loveland had, however, delivered

this amended motion, together with a motion for leave to amend, to the prison

authorities for mailing, as reflected by the prison date stamps on the documents.

Under the “mailbox rule,” these documents, having been provided to the prison

officers within two years of Loveland’s judgment and sentence becoming final, were

thus timely filed. See Haag v. State, 591 So. 2d 614, 617 (Fla. 1992) (explaining that

under the mailbox rule, a petition, notice, or motion from a pro se inmate “is deemed

filed at the moment in time when the inmate loses control over the document by

3 entrusting its further delivery or processing to agents of the state” (citing Houston v.

Lack, 487 U.S. 266, 275 (1988))).

The State has commendably and professionally conceded that the

postconviction court erred when it declined to address the proposed amended

motion. We agree with the State. See generally Norris v. State, 832 So. 2d 969, 970

(Fla. 2d DCA 2002) (“A defendant may amend a rule 3.850 motion if the trial court

has not yet ruled on the motion and the amendment is filed within the two-year time

limit [of the rule].” (citation omitted)).

Having directed the postconviction court to provide Loveland with sixty days

to file an amended motion for postconviction relief regarding grounds three and five

of his initial motion, we further direct that Loveland may assert his previous grounds

six and seven in the amended motion.

AFFIRMED in part; REVERSED in part; REMANDED with directions consistent with this opinion.

STARGEL and SMITH, JJ., concur.

Robert David Malove and Hani Demetrious of Robert David Malove, P.A., Ft. Lauderdale, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED