Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOSHUA J. BLATTNER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-1846 June 11, 2021 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Twelfth Circuit Court for DeSoto County; Don T. Hall, Judge. Joshua J. Blattner, pro se. PER CURIAM. Joshua J. Blattner appeals the order summarily denying his motion for correction of jail credit filed under Florida Rule of Criminal Procedure 3.801. We reverse the order and remand for the postconviction court to afford Blattner an opportunity to substantiate his claim that he did not receive the order that struck his motion with leave to amend and, if Blattner is successful, to grant him leave to file an amended rule 3.801 motion if Blattner can do so in good faith. The postconviction record reflects that in exchange for a five- year sentence of imprisonment to run concurrently with a sentence imposed for a Charlotte County conviction, Blattner admitted that he had violated his probation in DeSoto County. The trial court awarded eighty-three days of credit for jail time served prior to sentencing. The DeSoto County Sheriff's Office arrest and release report reflects that Blattner was arrested on June 5, 2015, and released on August 5, 2015, and then arrested on April 26, 2019, and sentenced on May 16, 2019. Blattner filed a timely rule 3.801 motion asserting that he is entitled to 328 days of credit for time spent in Charlotte County, where he had been held "with a detainer for DeSoto County." The postconviction court struck the motion with leave to file an amended motion within sixty days. It correctly concluded that the motion was insufficiently pleaded because it lacked the information required by rule 3.801(c)(4), was not under oath as required by rule 3.801(c), and lacked the certification required by rule 3.850(n)(2), as incorporated by rule 3.801(e). See Fla. R. Crim. P. 3.801(e) ("The 2 following subdivisions of Florida Rule of Criminal Procedure 3.850 apply to proceedings under this rule: 3.850(e), (f), (j), (k), and (n)."). The postconviction court explained that Blattner's motion was also legally insufficient because it did not allege when Blattner had been arrested for violating his probation and that a detainer does not place a person under arrest. "In other words, although Defendant may have been in custody for charges in Charlotte County with a detainer lodged against him by DeSoto County, if he was not arrested for this case while he was in the Charlotte County jail, he is not entitled to additional jail credit."1 The order warned Blattner that if he did not file a timely amended motion, his initial motion could be denied with prejudice. 1 The postconviction court's advice in this regard was not entirely accurate. Although a person is generally not in custody under a detainer for purposes of presentence jail credit, if the person would be subject to release but for the detainer, he or she may be entitled to credit for presentence jail time served. See Gethers v. State, 838 So. 2d 504, 507 (Fla. 2003) ("Generally, . . . a prisoner is not in custody pursuant to [a] detainer. Only if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer."). 3 Blattner did not file an amended motion, and the postconviction court exercised its discretion to summarily deny the motion with prejudice.2 Blattner filed a notice of appeal along with a letter claiming that he had not received the postconviction court's order striking his motion with leave to amend. Thereafter, he filed with this court an initial brief that reiterated that he had never received the order and an appendix to the brief that consisted of an excerpt from the prison mail log. Construing the letter as a timely and authorized motion for rehearing that tolled rendition of the postconviction court's order denying Blattner relief under rule 3.801, see Fla. R. App. P. 9.020(h)(1)(B); see also Fla. R. Crim. P. 3.801(e), 3.850(j), we relinquished jurisdiction for the postconviction 2 See Fla. R. Crim. P. 3.801(e) (incorporating portions of rule 3.850, including rule 3.850(f)). Rule 3.850(f)(2) provides: 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. 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. 4 court to consider and rule on the motion, see Fla. R. App. P. 9.020(h)(2)(C). The postconviction court denied the motion. The court stated that after filing his notice of appeal and letter, Blattner had filed a separate, formal motion for rehearing claiming that he had "never received the notice from the court that he needed to amend his motion within sixty (60) days," but Blattner had provided nothing to substantiate that claim. The court stated further that even if Blattner had not previously realized that he had been granted leave to amend, Blattner to that date still had not filed an amended motion for jail credit "or any other pleading that corrects the deficiencies from his original Motion," and that he had not pointed out facts or law that the court had overlooked in its order striking his original motion. The court also stated that even if Blattner had amended his motion, the amended motion likely would have been denied because a detainer would not have placed him in custody for the DeSoto County case. In his motion for rehearing, however, Blattner did point out a fact that the postconviction court had overlooked in its analysis— that Blattner allegedly had not received the order striking his 5 motion with leave to amend. To the extent that the court faulted Blattner for not filing an amended motion for jail credit "or any other pleading that corrects the deficiencies from his original Motion," Blattner would have had no reason to believe that he could have done so since the sixty-day amendment period had already lapsed. And to the extent that the postconviction court suggested that even if Blattner were to amend his motion, he "likely" would not be entitled to relief on the merits in light of his failure to include certain factual information in his original motion, an evaluation of the merits is premature because, as noted above, it would depend, in part, on information that Blattner would have to provide to render any amended motion legally sufficient. See supra note 1. Accordingly, we reverse the postconviction court's order and remand for that court to afford Blattner an opportunity to substantiate his claim that he did not receive the order striking his rule 3.801 motion with leave to amend and, if Blattner is successful, to grant Blattner leave to file an amended rule 3.801 motion if he can do so in good faith. See Smith v. State, 100 So. 3d 201, 202 (Fla. 2d DCA 2012) ("Postconviction relief proceedings must provide meaningful access to the judicial process, . . . and 6 resolution of a case on the merits is preferred." (citing Kokal v. State, 901 So. 2d 766, 777 (Fla. 2005))). Reversed and remanded. NORTHCUTT, ROTHSTEIN-YOUAKIM, and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 7