HOWARD v. STATE (2022)

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.

PER CURIAM.

EISNAUGLE, NARDELLA and WOZNIAK, JJ., concur.