Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT EMMANUEL REYNOLDS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-3834 August 18, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Kimberly Campbell, Judge. Rachael E. Reese and Olivia M. Nathan of O'Brien Hatfield Reese, P.A., Tampa, for Appellant. KHOUZAM, Judge. Emmanuel Reynolds appeals the orders denying his amended motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and his motion for rehearing. We reverse and remand because the trial court abused its discretion in denying Mr. Reynolds' motion for rehearing. Mr. Reynolds timely filed his original pro se motion for postconviction relief in May 2021. The postconviction court struck it for failure to comply with the page limit imposed under rule 3.850 and granted sixty days' leave to amend. See Fla. R. Crim. P. 3.850(d) ("No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause."); Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."); see also Al-Hakim v. State, 87 So. 3d 836, 838 (Fla. 2d DCA 2012) ("A handwritten motion containing an excessive number of lines per page could also be dismissed as illegible or, depending on the number of pages, as violative of the length limitations."). Mr. Reynolds retained counsel, who timely filed an amended motion. The amended motion failed to include the required oath, although it stated that the oath would be filed "by separate cover." See Fla. R. Crim. P. 3.850(c) (requiring oath); Anderson v. State, 627 So. 2d 1170, 1171 (Fla. 1993) (recognizing that the oath requirement of rule 3.850(c) applies even when a motion is filed by counsel). When the oath had not been provided after four months, the court struck the amended motion and again provided sixty days' leave to amend. When there was no timely amendment filed, the court denied the amended motion with prejudice. See Fla. R. Crim. P. 3.850(f)(2) ("If the amended motion is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court, in its discretion, may permit the defendant an additional opportunity to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice."). The court appropriately exercised its discretion in declining to provide another opportunity to amend. See Moore v. State, 307 So. 3d 915, 916 (Fla. 3d DCA 2020) (holding that, after defendant failed to file a 2 timely amendment, "the trial court properly exercised its discretion to prohibit further amendment of Moore's ineffective assistance of counsel claims in favor of entering a final order summarily denying the second amended motion with prejudice"). But then Mr. Reynolds' counsel filed a timely motion for rehearing, alleging that she had been out sick and mistakenly believed that her firm had filed a motion for an extension of time to file a second amended motion on her behalf. Simultaneously, she filed a second amended motion that contained the required oath. The court denied the motion for rehearing. This was an abuse of discretion. It is true that "[g]enerally, when a postconviction movant is given an opportunity to amend a legally insufficient motion and no amendment is forthcoming, the postconviction court may enter an order that is a disposition on the merits." Smith v. State, 100 So. 3d 201, 202 (Fla. 2d DCA 2012). For this reason, we find no fault in the court's decision to deny the amended motion after Mr. Reynolds failed to file an amendment containing the required oath. See Fla. R. Crim. P. 3.850(f)(2). However, because "[p]ostconviction relief proceedings must provide meaningful access to the judicial process and resolution of a case on the merits is preferred," it is an abuse of the court's discretion to decline to address the merits of a postconviction motion where the "movant cures the motion's procedural deficiency before the time for filing has expired and before the disposition is final." Smith, 100 So. 3d at 202 (internal citations omitted). Here, Mr. Reynolds' second amended motion—filed simultaneously with his timely motion for rehearing and within the applicable two-year time limit of rule 3.850—cured the deficiency by including the required oath. Therefore, the postconviction court abused its discretion in failing 3 to grant rehearing and consider the second amended motion on the merits. Accordingly, we reverse and remand with directions that the postconviction court address the merits of Mr. Reynolds' second amended motion for postconviction relief. Reversed and remanded. NORTHCUTT and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 4