Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DANTE R. HOWARD, ) ) Appellant, ) ) v. ) Case No. 2D20-2179 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed May 28, 2021. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Collier County; Ramiro Mañalich, Judge. Jonathan Saunders, Clearwater, for Appellant. BLACK, Judge. Dante Howard appeals from the order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Because the postconviction court denied two of Howard's claims as facially insufficient without first granting him the opportunity to amend them, as required by rule 3.850, we reverse the order in part. We affirm the order insofar as it denied the claims not addressed herein. In 2013, Howard was convicted of robbery with a firearm and aggravated assault with a firearm. He appealed his judgment and sentences, and this court issued a per curiam affirmance. Howard v. State, 207 So. 3d 874 (Fla. 2d DCA 2015) (table decision). The mandate issued on December 2, 2015. On November 6, 2017, Howard filed a motion for an extension of time in which to file a postconviction motion. On December 4, 2017, having received no ruling on his motion for an extension of time, Howard filed a motion pursuant to rule 3.850. Howard's motion was timely.1 More than three months later, and after the postconviction court belatedly granted Howard's motion for extension of time, Howard filed an amended rule 3.850 motion. In his amended motion, Howard contended that trial counsel was ineffective for (1) failing to move for a mistrial or a Richardson2 hearing due to a discovery violation; (2) informing the jury during opening statements that Howard was incarcerated despite a prior limine ruling; and (3) failing to investigate potentially exculpatory evidence. Howard did not raise the fourth claim that had been included in his original motion—that counsel was ineffective for failing to ask for a continuance of the motion to suppress hearing based on the State's late disclosure of evidence. On June 15, 2020, the postconviction court summarily denied Howard's amended motion. 1In his motion for extension of time, Howard acknowledged that December 2, 2017, was his two-year filing deadline. However, as December 2 was a Saturday and Howard filed his motion on the first weekday thereafter—December 4—his motion was timely. 2Richardson v. State, 246 So. 2d 771 (Fla. 1971). -2- The postconviction court denied the first claim raised in the amended motion—that counsel was ineffective for failing to move for a mistrial or request a Richardson hearing once the State conceded that the document a witness had been relying upon to refresh his memory had not been provided to the defense in discovery— as facially insufficient. The court found that Howard failed to allege specific facts that showed how the discovery violation "actually prejudiced the outcome of the trial" and that "demonstrated a deficiency on the part of counsel which [was] detrimental to" Howard. The court then "noted" that Howard had been given an opportunity to amend his motion and had done so but that this claim remained facially insufficient. The court determined that Howard had been provided with the amendment opportunity required by rule 3.850(f) and Spera v. State, 971 So. 2d 754, 761 (Fla. 2007), and that it was not obligated to allow him a second opportunity to amend. The postconviction court denied Howard's third claim—that counsel was ineffective for failing to investigate potentially exculpatory evidence—on the same basis. The court determined that despite being given the opportunity to file an amended claim, the claim remained facially insufficient because Howard failed to identify how security video or footprints found at the scene would have exonerated him. The postconviction court erred in determining that it had provided Howard with the opportunity to amend his facially insufficient claims as required by rule 3.850(f) and in denying his claims based on that finding. Rule 3.850 requires the postconviction court to allow a defendant one opportunity to amend a facially insufficient motion or claim within sixty days. Fla. R. Crim. P. 3.850(f). But subsection (e) of the rule permits amendment "at any time prior to either the entry of an order disposing of the motion or -3- the entry of an order pursuant to subdivision (f)(5)[, addressing claims conclusively resolved by the record,] or directing that an answer to the motion be filed pursuant to (f)(6), whichever occurs first." Fla. R. Crim. P. 3.850(e). In this case, the postconviction court failed to timely rule on Howard's motion for an extension of time, and then it issued two orders on the same day: the order on Howard's motion, which granted him thirty days to file an amended motion because an extension of time was no longer appropriate, and an order directing the State to respond to Howard's first rule 3.850 motion. By ordering the State to respond at the same time as it granted Howard an opportunity to amend—not based on the facial insufficiency of any of his claims, as evidenced by the order directing the State to respond—the court failed to give Howard the benefit of rule 3.850(e) and then later determined that its belated granting of the motion for extension of time met the requirements of 3.850(f). Howard only became aware that his claims were insufficient upon the entry of the final order. Howard had not previously been advised of the insufficiencies, nor had he been given an opportunity to file sufficient claims. The postconviction court's treatment of the extension of time amendment as a rule 3.850(f) amendment deprived Howard of the benefit of the rule. The court erred in summarily denying Howard's first and third claims; it should have struck the claims as insufficient and granted Howard sixty days to file an amended motion stating facially sufficient claims. See Fla. R. Crim. P. 3.850(f). That the order granting the extension of time includes the language that Howard could file "an amended, facially sufficient, postconviction motion" does not alter our conclusion because Howard was unaware at that time that any of his claims were insufficient. -4- Accordingly, we reverse in part the postconviction court's order summarily denying Howard's rule 3.850 motion and remand with instructions that the court allow Howard sixty days to amend claims one and three. In all other respects, we affirm the postconviction court's order. Affirmed in part; reversed in part; remanded. NORTHCUTT and LABRIT, JJ., Concur. -5-