HAND v. STATE (2021)

Stephen Cody Hand appeals the denial of his second amended Florida Rule of Criminal Procedure 3.850 motion, arguing that the postconviction court erred when it denied his motion for failing, in part, to include a proper oath. We affirm because Hand failed to correct the deficient oath after receiving an opportunity to amend.

Hand was represented by counsel throughout the entirety of the proceedings. In his original motion for postconviction relief, he raised one ground for relief but failed to allege prejudice and failed to comply with the oath requirements in rule 3.850(c). Hand seemed to acknowledge his failure to allege prejudice, and preemptively requested an opportunity to amend.¹

The postconviction court granted Hand an opportunity to amend, specifically identified the insufficient oath, and warned Hand that the amended motion might be summarily denied if it remained deficient. Thereafter, Hand requested numerous sixty-day extensions to file an amended motion and then sought leave to file a second amended motion. The postconviction court granted all of these requests.

Eventually, Hand filed his second amended motion for postconviction relief adding new claims. The postconviction court summarily denied the motion, in part, because the second amended motion's oath remained deficient. Hand then filed a motion for rehearing, again attempting to correct the oath. While the oath contained in the motion for rehearing moved closer to compliance, even this attempt inexplicably remained in violation of the rule. The postconviction court denied the motion for rehearing.

We review the summary denial of Hand's second amended motion, after he received an opportunity to amend, for an abuse of discretion. 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.”); Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (“The striking of further amendments is subject to an abuse of discretion standard ․”).

On appeal, Hand argues that the court erred in denying his motion as insufficient because, inter alia, he corrected the oath on rehearing. In support, Hand observes that “resolution of a case on its merits is preferred,” relying on our precedent in Woods v. State, 294 So. 3d 423, 425 (Fla. 5th DCA 2020). However, Woods is distinguishable.

In Woods, we reversed the summary denial of a postconviction motion because the only deficiency in that case was that the movant listed the wrong case number in the motion. 294 So. 3d at 424. There is no indication in Woods that the motion was substantively deficient as to its contents, the required certification, or the oath.

Instead, the deficiency in Woods was no more than an obvious typographical error, and the record demonstrated that the postconviction court knew the correct file to which the motion was directed because the challenged conviction had been consolidated with another case. In other words, the movant identified the judgment and sentence, but simply listed the old case number instead of the consolidated file. In such a circumstance, we concluded that the proper procedure was for the postconviction court to transfer the motion to the proper file. Id.

In this case, however, the deficiency in Hand's motion is more than a mere typographical error in the case number, or a misunderstanding by the movant due to consolidation with another case. Unlike in Woods, the oath at issue here is a substantive requirement of rule 3.850(c) with which Hand failed to comply. We will not extend Woods to excuse a failure to comply with the substantive requirements of the rule.

We are cognizant of the second district's decision in Smith v. State, 100 So. 3d 201 (Fla. 2d DCA 2012), but that case is of no assistance to Hand either. In Smith, the postconviction court granted the movant leave to amend a deficient oath, and then summarily denied the movant's amended motion when the oath remained deficient. 100 So. 3d at 201. Our sister court reversed, concluding that the denial was an abuse of discretion because the oath was eventually corrected in a motion for rehearing. Id. at 202.

In this case, even if we agree with Smith that a movant is entitled to two opportunities to amend a deficient motion (the amendment and again on rehearing), unlike in Smith, Hand's motion for rehearing did not fully correct the oath. As such, the postconviction court did not abuse its discretion when it summarily denied Hand's second amended motion.

AFFIRMED.

FOOTNOTES

1.   Hand also asked that his motion be held in abeyance to toll his federal remedies. The postconviction court denied that request.

EISNAUGLE, J.

EDWARDS and TRAVER, JJ., concur.