ACEVEDO SOTO v. STATE (2019)

Appellant, Oscar Acevedo-Soto, appeals the trial court's order denying his Florida Rule of Criminal Procedure 3.850 motion as legally insufficient based on Appellant's failure to allege deficient performance or prejudice and include an oath as required by rule 3.850(c). We conclude, however, that Appellant stated facially sufficient claims in Grounds 2 (failure to present evidence to support an impossibility defense), 4 (failure to move for a statement of particulars), 6 (failure to hire an expert witness who could testify that the victim had been coached), and 8 (cumulative error). We affirm the denial of Appellant's other claims because they remain deficient after he was given an opportunity to amend.

The trial court also correctly ruled that the motion is insufficient because it is unsworn. However, Appellant has not yet received an opportunity to correct this deficiency. See Alvarez v. State, 248 So. 3d 295, 295 (Fla. 5th DCA 2018) (“The ground, as pled, was facially insufficient but Alvarez was not put on notice of the defect. The postconviction court should have granted Alvarez leave to amend. Fla. R. Crim. P. 3.850(f)(3) ․ Should Alvarez amend this claim, if the postconviction court wants to summarily deny relief again, it must attach records that conclusively refute this ground for relief. Fla. R. Crim. P. 3.850(f)(5)[.]” (citations omitted)); Osorio v. State, 233 So. 3d 516, 517 (Fla. 2d DCA 2017) (“Because the postconviction court erred in summarily denying ground two as facially insufficient without first giving Mr. Osorio an opportunity to amend, we reverse as to that ground and remand for the court to strike it with leave to amend. We also reverse the denial of ground seven, which alleges a claim of cumulative error, for the court to reconsider after it resolves ground two.”). Therefore, on remand, the trial court should give Appellant an opportunity to file a properly sworn motion. If Appellant submits the requisite oath, the trial court should either attach portions of the record that conclusively refute Appellant's remaining claims in Grounds 2, 4, 6 and 8, or hold an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

PER CURIAM.

EDWARDS and EISNAUGLE, JJ., and JACOBUS, B.W., Senior Judge, concur.