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Howard v. State

Florida Court of Appeals, Fifth District
Mar 18, 2022
No. 5D21-2118 (Fla. Dist. Ct. App. Mar. 18, 2022)

Opinion

5D21-2118

03-18-2022

CALVIN LEE HOWARD, Appellant, v. STATE OF FLORIDA, Appellee.

Calvin Lee Howard, Graceville, pro se. No Appearance for Appellee.


NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appeal from the Circuit Court for Hernando County No. 2016-CF-2111, Stephen E. Toner, Jr., Judge.

Calvin Lee Howard, Graceville, pro se.

No Appearance for Appellee.

OPINION

PER CURIAM.

We affirm the summary denial of Appellant's Florida Rule of Criminal Procedure 3.850 motion, except as to ground one, claim 3 and ground two, claim 1.

In ground one, claim 3, Appellant alleges that his counsel was ineffective for failing to investigate the unredacted version of his interview with law enforcement. As a result, Appellant alleges that the interview was played for the jury without the benefit of exculpatory portions which would have directly supported his defense in the case. We conclude that this claim is sufficient and not conclusively refuted by the record. We therefore reverse the summary denial of this claim for an evidentiary hearing or for the trial court to attach records conclusively refuting the claim.

In ground two, claim 1, Appellant alleges the discovery of new evidence. Specifically, he alleges the victim's mother will testify that the victim admitted Appellant was not the shooter. The trial court denied this claim reasoning that Appellant did not explain why he could not have discovered this evidence with the exercise of due diligence. We agree that the claim is deficient, but Appellant did not receive an opportunity to amend. We therefore reverse for the trial court to give Appellant an opportunity to amend, if he can do so in good faith. See Spera v. State, 971 So.2d 754, 762 (Fla. 2007); Batista v. State, 288 So.3d 85, 86 (Fla. 4th DCA 2020) (reversing for an opportunity to amend where appellant failed to "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'" (quoting Fla. R. Crim. P. 3.850(b)(1))).

We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

EISNAUGLE, NARDELLA and WOZNIAK, JJ, concur


Summaries of

Howard v. State

Florida Court of Appeals, Fifth District
Mar 18, 2022
No. 5D21-2118 (Fla. Dist. Ct. App. Mar. 18, 2022)
Case details for

Howard v. State

Case Details

Full title:CALVIN LEE HOWARD, Appellant, v. STATE OF FLORIDA, Appellee.

Court:Florida Court of Appeals, Fifth District

Date published: Mar 18, 2022

Citations

No. 5D21-2118 (Fla. Dist. Ct. App. Mar. 18, 2022)