MOORE v. STATE (2020)

Craig Moore challenges the trial court's July 8, 2020 order denying, as facially insufficient, his second amended pro se post-conviction motion alleging ineffective assistance of trial counsel, brought pursuant to Florida Rule of Criminal Procedure 3.850. Because Moore's second amended post-conviction motion, like his two prior pro se post-conviction motions, failed to allege sufficient facts establishing that he was entitled to relief, we affirm.

On November 7, 2018, this Court affirmed Moore's conviction and sentence for one count of lewd and lascivious exhibition. See Moore v. State, 259 So. 3d 97 (Fla. 3d DCA 2018) (table). On June 18, 2019, the lower court received Moore's initial pro se rule 3.850 post-conviction motion. Determining that Moore's initial motion was timely filed, but insufficient on its face, the trial court gave Moore leave to file an amended motion.¹ See Fla. R. Crim. P. 3.850(f)(2). On January 29, 2020, the lower court received Moore's amended pro se rule 3.850 post-conviction motion. The trial court determined, once again, that Moore's amended motion was timely filed, but insufficient on its face, giving Moore leave to file another amended motion.

On April 15, 2020, the trial court received Moore's second amended pro se rule 3.850 post-conviction motion. Therein, in conclusory fashion, Moore alleged that his trial counsel had been ineffective for a multitude of reasons, including that defense counsel: (i) did not afford Moore witnesses “who could have provided [Moore] an alibi”; (ii) “was totally unprepared”; (iii) “was disloyal”; and (iv) had a “total lack of communication” with Moore during the lower proceeding. Moore also questioned, without explication, whether defense counsel had been ineffective with respect to his speedy trial rights. While not entirely clear, the gravamen of Moore's second amended rule 3.850 motion was that, rather than receiving a “fair trial” with a “real attorney,” Moore's conviction was the result of being tried in a “kangaroo court.”

On July 8, 2020, the trial court entered an order denying Moore's second amended motion, concluding that the motion was timely filed, but insufficient on its face. Determining that to give Moore leave to file a third amended rule 3.850 post-conviction motion would be futile, the trial court entered a final order denying Moore's post-conviction motion. Moore appeals this July 8, 2020 order.²

It is well-settled that a post-conviction motion alleging ineffective assistance of counsel must specifically allege both: (i) facts demonstrating that counsel's performance was deficient, and (2) that the result of the proceeding conducted below would have been different absent the deficient performance. Reaves v. State, 593 So. 2d 1150, 1151 (Fla. 1st DCA 1992). “General allegations or mere conclusions are insufficient to demonstrate entitlement to relief.” Id. On this record, we agree with the trial court that Moore's second amended rule 3.850 post-conviction motion failed to include facts establishing both the deficient performance of defense counsel and any prejudice to Moore. Also, the trial court properly exercised its discretion to prohibit further amendment of Moore's ineffective assistance of counsel claims in favor of entering a final order summarily denying the second amended motion with prejudice. See Fla. R. Crim. P. 3.850(f)(2) (“If the amended motion is still insufficient ․, 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.”). We, therefore, affirm the July 8, 2020 order.

Affirmed.

FOOTNOTES

1.   Moore sought to appeal this non-final order. Pursuant to rule 3.850(k), we dismissed the improper appeal for lack of jurisdiction. See Moore v. State, 281 So. 3d 553, 554 (Fla. 3d DCA 2019).

2.   We review de novo the trial court's summary denial of the claims raised in Moore's second amended rule 3.850 post-conviction motion. See Bolduc v. State, 279 So. 3d 768, 769 (Fla. 2d DCA 2019). Thus, we will affirm the trial court's July 8, 2020 order “only if the claim is facially insufficient or conclusively refuted by the record.” Id.

SCALES, J.