Third District Court of Appeal
State of Florida
Opinion filed September 03, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1750
Lower Tribunal No. 2013-CF-21-A-K
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Nicholas Belanger,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Monroe County, Mark H. Jones, Judge.
Nicholas Belanger, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before ROTHENBERG, LOGUE, and SCALES, JJ.
ROTHENBERG, J.
The defendant, Nicholas Belanger, appeals the denial of his Florida Rule of
Criminal Procedure 3.801 motion for additional jail credit. Based on our review of
the defendant’s motion, we agree with the trial court that the defendant’s motion
fails to include all of the information required by rule 3.801(c).1 However, because
this was the defendant’s first attempt to file such a motion, the trial court erred by
denying the defendant’s motion without giving the defendant leave to amend his
motion. Accordingly, we reverse the order under review to allow the defendant to
file a facially sufficient rule 3.801 motion within sixty days of the issuance of this
Court’s mandate.
We briefly address the procedure that should be followed by trial courts
when a defendant files a timely but facially insufficient rule 3.801 motion that
disputes the amount of credit given for the time the defendant spent in the county
1 Rule 3.801(c) provides:
(c) Contents of Motion. The motion shall be under oath and
include:
(1) a brief statement of the facts relied on in support of the
motion;
(2) the dates, location of incarceration and total time for credit
already provided;
(3) the dates, location of incarceration and total time for credit
the defendant contends was not properly awarded;
(4) whether any other criminal charges were pending at the time
of the incarceration noted in subdivision (c)(3), and if so, the location,
case number and resolution of the charges; and
(5) whether the defendant waived any county jail credit at the
time of sentencing, and if so, the number of days waived.
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jail prior to sentencing. Rule 3.801(e) incorporates portions of rule 3.850,
including subsection (f). Rule 3.850(f)(2) provides:
(f) Procedure; Evidentiary Hearing; Disposition. On filing
of a motion under this rule, the clerk shall forward the motion and file
to the court. Disposition of the motion shall be in accordance with the
following procedures, which are intended to result in a single, final,
appealable order that disposes of all claims raised in the motion.
....
(2) Timely but Insufficient Motions. 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.
(Emphasis added).
Although the trial court concluded that the defendant’s timely-filed 3.801
motion was facially insufficient, it appears this was the defendant’s first attempt to
file a facially sufficient rule 3.801 motion. Thus, the trial court should not have
denied the motion and entered a final judgment advising the defendant that he had
the right to file an appeal within thirty days of its rendition. Instead, the trial court
should have entered “a nonfinal, nonappealable order allowing the defendant 60
days to amend the motion.” Fla. R. Crim. P. 3.850(f)(2); see also Spera v. State,
971 So. 2d 754, 761-62 (Fla. 2007) (holding that, “When a defendant’s initial rule
3.850 motion for postconviction relief is determined to be legally insufficient for
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failure to meet either the rule’s or other pleading requirements, the trial court
abuses its discretion when it fails to allow the defendant at least one opportunity to
amend the motion,” and limiting its ruling to motions deemed facially insufficient
to support relief).
Reversed.
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