DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ADONIS BATISTA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3023
[January 8, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Joseph Marx, Judge;
L.T. Case Nos. 50-2015-CF-004958-AXXX-MB, 50-2015-CF-004959-
BXXX-MB, 50-2015-CF-004960-AXXX-MB, 50-2015-CF-004963-AXXX-
MB, 50-2015-CF-005134-AXXX-MB, 50-2015-CF-005136-AXXX-MB, 50-
2015-CF-005301-AXXX-MB, 50-2015-CF-005574-AXXX-MB, 50-2015-
CF-005917-AXXX-MB, and 50-2016-CF-005278-AXXX-MB.
Adonis Batista, Coconut Creek, pro se.
Ashley Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse the trial court’s order summarily denying appellant’s rule
3.850 motion for postconviction relief and remand with directions that the
trial court provide appellant an opportunity to amend his motion if he can
do so in good faith.
As the state concedes, the trial court did not attach any records to
support its conclusion that the motion was untimely, and the court erred
in finding that appellant had failed to allege any exception to the two-year
time limit. See Fla. R. Crim. P. 3.850(b)(1). Appellant alleged newly
discovered evidence. As explained below, the trial court should have
allowed appellant at least one opportunity to amend the motion to cure
pleading deficiencies. Spera v. State,
971 So. 2d 754, 761 (Fla. 2007); see
also Fla. R. Crim. P. 3.850(f).
Appellant’s motion was facially insufficient as it failed to contain the
information required by rule 3.850(c) (“Contents of Motion”), such as the
date of the judgment and sentence under attack and whether an appeal or
prior postconviction motion had been filed.
We agree with the state that appellant’s bare and conclusory allegation
of newly discovered evidence was insufficient. Appellant’s motion failed to
describe the nature of the alleged new evidence or explain how “the facts
on which the claim is predicated were unknown to the movant or the
movant’s attorney and could not have been ascertained by the exercise of
due diligence.” Fla. R. Crim. P. 3.850(b)(1).
Finally, appellant failed to attach an affidavit or to explain why no
affidavit was attached as required by the rule:
If the defendant is filing a newly discovered evidence claim
based on recanted trial testimony or on a newly discovered
witness, the defendant shall include an affidavit from that
person as an attachment to his or her motion. For all other
newly discovered evidence claims, the defendant shall attach
an affidavit from any person whose testimony is necessary to
factually support the defendant’s claim for relief. If the
affidavit is not attached to the motion, the defendant shall
provide an explanation why the required affidavit could not be
obtained.
Fla. R. Crim. P. 3.850(c).
Accordingly, we reverse the order summarily denying the motion and
remand for the trial court to provide appellant an opportunity to amend
his motion and to allege a valid exception to the two-year time limitation if
he can do so in good faith.
Spera, 971 So. 2d at 762 (“[W]e warn that our
decision today permits defendants to amend defective pleadings only if
they can be amended in good faith. It is not an invitation to frivolous
pleading.”); see also Fla. R. Crim. P. 3.850(n) (“No motion may be filed
pursuant to this rule unless it is filed in good faith and with a reasonable
belief that it is timely, has potential merit, and does not duplicate previous
motions that have been disposed of by the court.”).
Reversed and remanded with directions.
WARNER, CIKLIN and CONNER, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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