facially sufficient claim in Florida

2025However, because this portion of ground one presented a cognizable but insufficient claim, we remand for the postconviction court “to strike this claim with leave to amend to file a facially sufficient claim within a reasonable time, if [Appellant] can do so in good faith.” See Rish v. State, 268 So. 3d 233, 235 (Fla. 5th DCA 2019) (citing Spera v. State, 971 So. 2d 754 , 761–62 (Fla. 2007)).

2025See Spera v. State, 971 So. 2d 754 , 761–62 (Fla. 2007) (explaining that a legally insufficient motion for postconviction relief should be denied without prejudice to allow leave to amend); Belanger v. State, 146 So. 3d 136 , 137–38 (Fla. 3d DCA 2014) (“[I]t appears this was the defendant’s first attempt to file a facially sufficient rule 3.801 motion[,] . . . . [hence,] the trial court should have entered ‘a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.’” (quoting Fla. R.

2016See Plott v. State, 148 So.3d 90, 94 (Fla. 2014) (“[A] sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’ ” (quoting State v. Mancino, 714 So.2d 429, 433 (Fla. 1998))); King v. State, 86 So.3d 1247, 1248 (Fla. 2d DCA 2012) (“The discrepancy between the oral pronouncement and written sentence is a valid basis for an illegal sentence claim under rule 3.800(a).”); Blocker v. State, 968 So.2d 686, 691 (Fla. 2d DCA 2007) (“It has long been the law that the oral pronouncement of sentence controls over a written sentence.”).

2006In order to allege a facially sufficient claim for jail credit, rule 3.800(a), Florida Rules of Criminal Procedure, requires that the motion allege that "the court records demonstrate on their face an entitlement to that relief ...." This requirement was inserted into the rule in 2000 by the Florida Supreme Court to conform the rule with the decision in State v. Mancino, 714 So.2d 429, 433 (Fla.1998) ("We hold credit time issues are cognizable in a rule 3.800 motion when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief.").

2025See Tisdale v. State, 282 So. 3d 998 , 1000 (Fla. 3d DCA 2019) (noting that the standard of review of a summary denial of a motion alleging ineffective assistance of counsel is de novo); McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” (quotation omitted)); Carballo v. State, 353 So. 3d 1288 , 1291 (Fla. 3d DCA 2023) (“To allege a facially sufficient claim for ineffective assistance of counsel, a defendant must plead sufficient facts

2019His assertions, taken as true, establish a facially sufficient claim under Strickland v. Washington, 466 U.S. 668, 678 (1984).

2004See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003).

2003However, Aiello failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. 1 See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003).

2016Nelson, 875 So.2d at 583 (“[A] defendant would be required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel’s failure to call, interview, or present the witnesses who would have so testified prejudiced the case.”). 1 But the posteonviction court reversibly erred in summarily denying this claim without first affording Mr. Cox the opportunity to amend to state a facially sufficient claim for relief.

2014In Nelson , this Court held that to present a facially sufficient claim alleging the ineffectiveness of counsel for failing to present certain witnesses, a postconviction motion must include an assertion that those witnesses would in fact have been available to testify at trial. 875 So.2d at 584 .

2014See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994).

2011See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998).

2026Under Pardo, a postconviction court should hold an evidentiary hearing on a rule 3.851 motion “whenever the movant makes a facially sufficient claim that requires a factual determination.” -7- Pardo, 108 So. 3d at 560 (citation omitted).

2025We have said that “[a] circuit court should hold an evidentiary hearing on a rule 3.851 motion ‘whenever the movant makes a facially sufficient claim that requires a factual determination.’ ” Rogers v. State, 327 So. 3d 784 , 787 (Fla. 2021) (quoting Pardo v. State, 108 So. 3d 558, 560 (Fla. 2012)).

2025“A facially sufficient claim that counsel was ineffective in failing to call witnesses generally requires an evidentiary hearing.” Perez v. State, 128 So. 3d 223, 226 (Fla. 2d DCA 2013) (citing Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004)); see also Terrell v. State, 9 So. 3d 1284, 1289 (Fla. 4th DCA 2009) (“Ordinarily, where . . . the defendant has identified specific exonerating testimony which could have been provided by an expert, an evidentiary hearing will be required to determine whether the decision not to present the expected testimony was tactical or an unprofessional failure on

2024“A facially sufficient claim that counsel was ineffective in failing to call witnesses generally requires an evidentiary hearing.” Perez v. State, 128 So. 3d 223, 226 (Fla. 2d DCA 2013) (citing Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004)).

2017Pro. 3.851, 3.852, & 3.993, 772 So. 2d 488 , 491 n.2 (Fla. 2000). “[T]o the extent there is any question as to whether a rule 3.851 movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required.” Walker v. State, 88 So. 3d 128, 135 (Fla. 2012).

2017Pro. 3.851, 3.852, & 3.993, 772 So.2d 488 , 491 n.2 (Fla. 2000). “[T]o the extent there is any question as to whether a rule 8.851 movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required.” Walker v. State, 88 So.3d 128, 135 (Fla. 2012).

2018Pro. 3.851, 3.852, & 3.993, 772 So. 2d 488 , 491 n.2 (Fla. 2000) (explaining that an evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination); Teffeteller v. Dugger, 734 So. 2d 1009, 1023 (Fla. 1999) (“Trial counsel cannot be deemed ineffective for failing to raise meritless claims or claims that had no reasonable probability of affecting the outcome of the proceeding.”).

2018Pro. 3.851, 3.852, & 3.993 , 772 So.2d 488 , 491 n.2 (Fla. 2000) (explaining that an evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination); Teffeteller v. Dugger , 734 So.2d 1009 , 1023 (Fla. 1999) ("Trial counsel cannot be deemed ineffective for failing to raise meritless claims or claims that had no reasonable probability of affecting the outcome of the proceeding.").

2008A prima facie case of ineffective assistance of counsel based on the rejection of a plea offer is made if a defendant proves: "(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State's plea offer would have resulted in a lesser sentence." Id. (emphasis added). *234 Here, Jackson sets forth a facially sufficient claim of ineffective assistance.

2008To make a facially sufficient claim of ineffective assistance of counsel for failure to convey a plea offer, the defendant must allege that "(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State's plea offer would have resulted in a lesser sentence." Cottle v. State, 733 So.2d 963, 967 (Fla.1999).

2006See Whitt v. State, 807 So.2d 788, 788 (Fla. 2d DCA 2002).

2006See Whitt v. State, 807 So.2d 788, 788 (Fla. 2d DCA 2002) (finding that defendant presented a facially sufficient claim by alleging that the claim could be determined from the trial court records and the county jail records).

2024Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).

2024See Martin, 205 So. 3d at 812 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).

2001As this court did in Daniels v. State, 771 So.2d 57 (Fla. 2d DCA 2000), we affirm without prejudice to Tindle to file a timely, facially sufficient motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850 if he has sufficient grounds to do so.

2001See Daniels v. State, 771 So.2d 57 (Fla. 2d DCA 2000).

2025“A facially sufficient claim that counsel was ineffective in failing to call witnesses generally requires an evidentiary hearing.” Perez v. State, 128 So. 3d 223, 226 (Fla. 2d DCA 2013) (citing Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004)); see also Terrell v. State, 9 So. 3d 1284, 1289 (Fla. 4th DCA 2009) (“Ordinarily, where . . . the defendant has identified specific exonerating testimony which could have been provided by an expert, an evidentiary hearing will be required to determine whether the decision not to present the expected testimony was tactical or an unprofessional failure on

2024“A facially sufficient claim that counsel was ineffective in failing to call witnesses generally requires an evidentiary hearing.” Perez v. State, 128 So. 3d 223, 226 (Fla. 2d DCA 2013) (citing Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004)).

2025But we will affirm a summary denial of an initial 3.851 motion “if the filings show that the movant has failed to state a facially sufficient claim, there is no issue of material fact to be determined, the claim should have been brought on direct appeal, or the claim is positively refuted by the record.” Kocaker, 311 So. 3d at 821 (quoting Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013)).

2025Although “[a]n evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires factual determination,” id. (quoting Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013)), an evidentiary hearing is not required if the claims are all “legally insufficient, procedurally barred, or refuted by the record,” Morris v. State, 317 So. 3d 1054 , 1071 (Fla. 2021) (quoting Matthews v. State, 288 So. 3d 1050 , 1060 (Fla. 2019)).

2018See Strickland v. Washington, 466 U.S. 668 (1984); Gutierrez v. State, 27 So. 3d 192, 194 (Fla. 5th DCA 2010) (holding that, to set forth a facially sufficient claim of ineffective assistance of counsel based on counsel’s failure to call a witness, the defendant must provide the identity of the potential witness, the substance of the witness’s testimony, and demonstrate prejudice based on the omitted testimony); see also Jones v. McNeil, 776 F. Supp. 2d 1323, 1353 (S.D.

2014“If a motion presents a facially sufficient claim of ineffective assistance of counsel for failing to call a "witness, the movant is entitled to an evidentiary hearing unless the motion is conclusively refuted by the record or is otherwise procedurally barred.” Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010).

2017See State v. Leroux, 689 So.2d 235, 236 (Fla. 1996).

2009See, e.g., State v. Leroux, 689 So.2d 235, 236 (Fla.1996) (noting that “counsel’s erroneous advice regarding the length of sentence or eligibility for gain time or early release can be the basis for postconviction relief’); Borders v. State, 936 So.2d 737, 737 (Fla. 2d DCA 2006) (finding that the defendant stated a facially sufficient claim of ineffective assistance of counsel after counsel advised the defendant that he would be entitled to full credit for all prior time served but the court refused to award such full credit).

2015See Pierre v. State, 973 So.2d 547 (Fla. 5th DCA 2008).

2015See Pierre v. State, 973 So.2d 547 (Fla. 5th DCA 2008).

2014An evidentiary hearing should be held “whenever the movant makes a facially sufficient claim that requires a factual determination.” Gore v. State, 24 So.3d 1, 11 (Fla.2009) (quoting Owen v. State, 986 So.2d 534, 543 (Fla.2008)).

2014An evidentiary hearing should be held “whenever the movant makes a facially sufficient claim that requires a factual determination.” Gore v. State, 24 So. 3d 1, 11 (Fla. 2009) (quoting Owen v. State, 986 So. 2d 534, 543 (Fla. 2008)).

2014An evidentiary hearing should be held “whenever the movant makes a facially sufficient claim that requires a factual determination.” Gore v. State, 24 So.3d 1, 11 (Fla.2009) (quoting Owen v. State, 986 So.2d 534, 543 (Fla.2008)).

2014An evidentiary hearing should be held “whenever the movant makes a facially sufficient claim that requires a factual determination.” Gore v. State, 24 So. 3d 1, 11 (Fla. 2009) (quoting Owen v. State, 986 So. 2d 534, 543 (Fla. 2008)).

2023To state a facially sufficient claim of ineffective assistance of counsel based on the failure to call a witness, “the movant must allege the identity of the potential witness, the substance of the witness’s testimony, an explanation of how the omission of the testimony prejudiced the outcome of the case, and a representation that the witness was available for trial.” Thomas v. State, 284 So. 3d 1167 , 1168 (quoting Leftwich v. State, 954 So. 2d 714, 714 (Fla. 1st DCA 2007)).

2019To state a facially sufficient claim for the failure to call a witness, “the movant must allege the identity of the potential witness, the substance of the witness’s testimony, an explanation of how the omission of the testimony prejudiced the outcome of the case, and 5 a representation that the witness was available for trial.” Leftwich v. State, 954 So. 2d 714, 714 (Fla. 1st DCA 2007).

2004In Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998), we held that a facially sufficient rule 3.800 motion to correct an illegal sentence must allege where and how the court records demonstrate entitlement to relief.

2003However, the appellant has stated a facially sufficient claim pursuant to rule 3.800(a) and his record attachments satisfy the requirements of Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998).

2025See Spera v. State, 971 So. 2d 754 , 761–62 (Fla. 2007) (explaining that a legally insufficient motion for postconviction relief should be denied without prejudice to allow leave to amend); Belanger v. State, 146 So. 3d 136 , 137–38 (Fla. 3d DCA 2014) (“[I]t appears this was the defendant’s first attempt to file a facially sufficient rule 3.801 motion[,] . . . . [hence,] the trial court should have entered ‘a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.’” (quoting Fla. R.

2019See Belanger , 146 So.3d at 137 .

2005Because the appellant has stated a facially sufficient claim that he is entitled to resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), on Count II for robbery with a firearm, we reverse and remand for the trial court to reconsider this claim.

2001Because Tindle has failed to allege that his sentence imposed under the 1995 sentencing guidelines would constitute a departure sentence under the 1994 sentencing guidelines, Tindle has failed to present a facially sufficient claim for relief under Heggs v. State, 759 So.2d 620 (Fla.2000).