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Green v. State

District Court of Appeal of Florida, Second District
Oct 15, 2008
992 So. 2d 411 (Fla. Dist. Ct. App. 2008)

Opinion

No. 2D07-4676.

October 15, 2008.

Appeal from the Circuit Court, Hillsborough County, Anthony K. Black, J.


Robert Green appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds four, five, six, and eight without comment. We also affirm the denial of Mr. Green's subclaim in ground two regarding the procedures used in photopack identification. However, we reverse the denial of grounds one, three, seven, and the remainder of the claims in ground two, and we remand for further proceedings.

Although the postconviction court correctly determined that these allegations were legally insufficient, it denied the claims without first granting Mr. Green leave to amend as required by Spera v. State, 971 So.2d 754 (Fla. 2007) (holding that the postconviction court should not deny a claim due to a pleading deficiency without first giving the petitioner an opportunity to amend the claim unless the claim is conclusively refuted by the record or the claim could not be made facially sufficient through a "good faith" amendment). Because the limited record before this court fails to conclusively refute these grounds, we remand for the postconviction court to strike these portions of Mr. Green's motion with leave to amend within a reasonable period of time. See id.; Baldwin v. State, 978 So.2d 257 (Fla. 2d DCA 2008).

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.


Summaries of

Green v. State

District Court of Appeal of Florida, Second District
Oct 15, 2008
992 So. 2d 411 (Fla. Dist. Ct. App. 2008)
Case details for

Green v. State

Case Details

Full title:Robert GREEN, Jr., Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Oct 15, 2008

Citations

992 So. 2d 411 (Fla. Dist. Ct. App. 2008)