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Theodore Spera v. State of Florida

SC06-1304

>> ALL RAISE -- THE SUPREME
COURT OF FLORIDA IS NOW IN
SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, GAVE TENGS
AN YOU SHALL BE HEARD, GOD
SAVE THE UNITED STATES THE
GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
>> GOOD MORNING.
>> GOOD MORNING.,,
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT PLEASE
BE SEATED.,,
.
>> GOOD MORNING FRIENDS AND
WELCOME TO THE OR WILL
ARGUMENT CALENDAR FOR THE
FLORIDA SUPREME COURT FRIDAY,
JUNE 8, 2007, THE ONLY CASE ON
THE CALENDAR THIS MORNING IS
THE SPERA VERSUS STATE OF
FLORIDA.
READY TO PROCEED?
>> MR. CHIEF JUSTICE.
>> -- MR. CHIEF JUSTICE MAY IT
PLEASE THE COURT, BRUCE AND
CYNTHIA FOR THEODORE SPERA
THIS COURT AND SERIOUS OF
CASES HAS HELD, THAT A DIE
EFFICIENT PLEADING IN RAOUL
3.850 MOTION MAY BE CORRECTED,
WITH LEAVE TO AMEND, OH --
>> I'M NOT INSURE WHETHER THAT
MICROPHONE IS WORKING BUT,
PULL IT UP A LITTLE BIT.
AND.
>> IS THIS BETTER JUSTICE
ANSTEAD!!$$!!!!!!!!!!!!
ANSTEAD?
>> YES, MARSHALL IS CHECKING.
>> IN A SERIOUS OF CASES -- IN
A SERIOUS OF CASES, THIS COURT
HAS HELD THAT APPEAR DEFECTIVE
OR DEEFFICIENT 3.850 MOTION
MAY BE CORRECTED WITH LEAVE TO
AMEND IN NELSON -//S ARE VERY
STATE, THE COURT SAID LEAVE TO
AMEND MUST BE GRANTED, IN
BRYANT VERSUS STATE THE
HOLDING OF THE COURT WAS AND
THAT SAID THEREFORE WE HOLD
THAT THERE SHOULD BE LEAVE TO
AMEND.
IN MILTON VERSUS STATE, THE
COURT FOLLOWED NELSON.
>> LET ME ASK YOU ABOUT BRYANT
WHAT WE DID IN BRYANT IT SEEMS
LIKE IN BRYANT WE DID TWO
THINGS.
AS TO THE FAILURE TO ATTACH A
COPY OF THE SENTENCING ORDER,
WE SAID THE COURT SHOULD HAVE
STRICKEN GRANTED LEAVE TO FILE
A COMPLIANT MOTION, BUT AS TO
ANOTHER ARGUMENT THAT HAD BEEN
MADE WE AFFIRMED THE SUMMARY
DENY$$!!!!IAL OF THAT CLAIM, AS
INSUFFICIENT.
>> YOU DID, IN BRYANT, AND
BRYANT IS WHAT THE FOURTH
DISTRICT COURT OF APPEAL
SEIZED UPON IN COMING TO THE
CONCLUSION THAT THE PLEADING
IN THIS CASE COULD NOT BE
AMENDED.
>> RIGHT.
>> BUT WHEN, REMEMBER OF
COURSE!!$$!!!!!!!!!!
COURSE, BRYANT WAS AN AMENDED
3.850 TO BEGIN WITH.
SO BRYANT HAD AMENDED ONCE,
AND THEN IT WAS ON THE AMENDED
PLEADING THAT THE COURT FOUND
IT WAS INSUFFICIENT.
>> BUT DO YOU THINK BRYANT
STANDS FOR THE PROPOSITION
THAT -- THAT DEFENDANTS SHOULD
BE GIVEN ONE CHANCE TO AMEND A
DEFICIENT PLEADING.
>> DO I, BECAUSE THE LANGUAGE
IN BRYANT, IS, THEREFORE, WE
HOLD THAT WHEN A $$DEFENDANT'S
INITIAL POSTCONVICTION MOTION
FAILS TO COMPLY WITH THE
REQUIREMENTS IN THAT CASE IT
WAS 3.851, IT WAS A DIETING
PENALTY CASE THE PROPER
PROCEDURE IS TO STRIKE THE
MOTION WITH LEAVE TO AMEND
THAT WAS THE HOLDING IN
BRYANT.
NOW I RECOGNIZE THAT BRYANT --
I.
>> I GUESS THAT THE -- THAT
THE TUG HERE IS BETWEEN THE --
THE FACT THAT THE COURT HAS
BEEN VERY RELUCTANT WITH OUR
EXPERIENCE IN CAPITAL
POSTCONVICTION TO GET INTO
SITUATIONS IN WHICH PLEADING
IS BECOMES SUCH A TECHNICAL
REQUIREMENT THAT CASES ARE
BOUNCED OUT AND THEN WE HEAR
THEM ON APPEAL, AND RATHER
THAN GETTING TO THE MERITS OF
A MATTER.
AND WHAT OUR WE ARE -- HAVE
BEEN STRUGGLING WITH SINCE
I'VE BEEN HERE, IS WHETHER
WHEN A POSTCONVICTION MOTION
IS FILED EVERY ONE OF THEM
SHOULD GO TO JUST
AUTOMATICALLY A EVIDENTIARY
HEARING, BUT THAT HAS AN
OVERWHELMING ADMINISTRATIVE
PROBLEM AS FAR AS THE TRIAL
COURTS ARE CONCERNED, OR
WHETHER WE SHOULD HAVE SOME
PLEADINGP STANDARDS AND I WAS
UNDER THE IMPRESSION IN NELSON
THAT WHAT WE WERE DEALING WITH
WAS A VERY DISCREET MATTER,
HAVING TO DO WITH WLGS AND
WHEN YOU -- WITNESSES WHEN YOU
SAY DOESN'T HAVE BIRTH YOUR
LAWYER DIDN'T HAVE THE BENEFIT
OF GETTING A WITNESS, THAT
THAT IS SOMETHING THAT IS VERY
DISCREET THAT COULD BE TAKEN
CARE OF, AS FAR AS APPEAR
PLEADING IS CONCERNED, ISN'T
THIS -- AREN'T WE IN A VERY
DISCREET AREA HERE?
>> WELL, I THINK WE ARE,
JUSTICE WELLS BUT I THINK YOUR
CONCERN ABOUT OPENING THE
FLOOD INVESTIGATES TO
EVIDENTIARY HEARINGS IS NOT A
REAL PROBLEM, BECAUSE
OFTENTIMES!!$$!!!!!!!!!!!!!!!!!!
OFTENTIMES, ON THE FACE OF THE
3.8 A -- 3.850 MOTION THE
COURT COULD FIND THAT IT IS
INSUFFICIENT BECAUSE THE
RECORD ITSELF --
>> MR. ROGOW, THE STATS THAT
WE HAVE IN OUR COURT SYSTEM
SHOWS THAT -- THAT WE DO HAVE
A PROBLEM.
IN THAT THE TRIAL COURT
CASELOAD IN CRIMINAL MATTERS
ARE SO MUCH MORE SUBSTANGSLY
WHITED TOWARD POSTCONVICTION
THAN ANYTHING ELSE.
AND SO IT ISN'T -- AN
ADMINISTRATIVE PROBLEM.
>> THERE IS NO QUESTION THAT
THERE IS A CASELOAD AND A
NUMBER OF THESE 3.850 MOTIONS
THAT ARE YOU ARE FILED BUT IT
IS SIMPLY A PRICE THAT WE PAY
FOR THE CRIMINAL JUSTICE
SYSTEM, AND WHEN LIBERTY IS AT
STAKE AN AMENDED PLEADING IS
NOT TOO MUCH TO ASK THE COURT
TO INDULGE --
>> ARE YOU ASKING FOR A SEE
THIS MY PROBLEM, AND ALSO
FOLLOW UPS A LITTLE BIT ON
JUSTICE WELLS I'M A LITTLE
MORE SYMPATHETIC IN TERMS OF
WHETHER WERE YOU IN THE
BALLPARK OR NOT, BUT, IS THE
SAME RULE TO BE APPLAUD IF A
DEFENDANT SAYS MY LAWYER WAS
INEFFECTIVE!!$$!!!!!!!!!!!!!!!!!!!!
INEFFECTIVE, BECAUSE YOU KNOW
HE DIDN'T CALL ME.
AND THEREFORE I WANT RELIEF.
IS THAT THE SAME AS HAVING
FACTS THAT ARE ALLEGED BUT YOU
ARE NOT SURE WHETHER ALL THOSE
FACTS ARE GOING TO BE PUT
TOGETHER IN A WAY THAT WILL
ACTUALLY SET FORTH A CLAIM FOR
RELIEF!!$$!!!!!!!!!!
RELIEF?
IN OTHER WORDS, IS THERE TO BE
DISCRETION FOR THE TRIAL
JUDGE, BECAUSE WE SEE, AGAIN,
YOU KNOW, WE SEE HUNDRED OF
THESE PLEADINGS, AND MOST OF
THEM ARE PRO SE, AND MOST OF
THEM AREN'T IN EVEN THE
BALLPARK!!$$!!!!!!!!!!!!!!
BALLPARK.
SO THAT IS THE QUESTION IS ARE
YOU ASKING THIS FOR A PER SE
RULE SOMEONE GETS ONE CHANCE
AND THAT IS IT?
OR ARE YOU SAYING THAT IN THIS
CASE THE JUDGE -- GIVEN THE
CIRCUMSTANCES SHOULD SHOULD
XERD -- XERD HERDITION
CREATION TO SAY WERE YOU THIS
THE BALL PARKION AND HAVE BEEN
ALLOWED TO PLEAD --
>> I'M CERTAINLY SAYING IN
THIS CASE, IT SHOULD HAVE BEEN
LEAVE TO AMEND, SO WINNING
THIS CASE WOULD BE IMPORTANT.
>> I DON'T SEE IN THIS CASE --
WE SEE A LOT OF THIS, THAT
SOMEONE SAYS, A LAWYER DIDN'T
YOU KNOW WASN'T -- HAD ALL
THIS DOESN'T GIVE ANY FACTS AS
TO WHAT WERE THE OMISSIONS
DURING THE TRIAL THAT WOULD
SET FORTH A CLAIM FOR RELIEF.
>> JUSTICE PARIENTE I'M SAYING
IN THIS CASE IT SHOULD HAVE
BEEN DONE BUT I ALSO AM GOING
BEYOND THAT BECAUSE I THINK, I
THINK THAT THERE SHOULD BE
LEAVE TO AMEND.
>> WHEN DID THE LAWYER SAY IN
THIS PLEADING THAT WOULD GIVE
THAT COULD GIVE RISE TO A
COLRABLE CLAIM.
>> THAT HE DID NOT BEGIN
PREPARATION SO THE -- TILL
WEEK BEFORE TRIAL DIDN'T
PRESENT A DEFENSE DID NOT CALM
WLGZS ON DEFENDANTS BEHALF
THOUGH INSTRUCTED TO DO SO NOW
THAT COULD BE FLESHED OUT I
THINK THIS GOES TO MY POSITION
THAT A PER SE RULE SAYING ONE
SHOT AT AMENDING ONE LEAVE TO
AMEND, WOULD BE HELPFUL EVEN
IN ADDRESSING WHAT JUSTICE
WELLS IS TALKING ABOUT BECAUSE
IF THE AMENDED PLEAD WAS
DEFICIENT SHOWED THERE WAS
NOTHING THERE, WELL, THEN IF
THE COURT DENIED RELIEF AT
THAT POINT --
>> BUT ON THE OTHER HAND HOW
DO YOU SQUARE THAT POSITION?
ONE CHANCE TO AMEND WITH THE
IDEA THAT WE TALKED ABOUT IN
BRYANT, THAT WE ARE NOT REAL
AUTHORIZING PEOPLE TO MAKE
SHELL MOTION SO IS IF YOU FILE
3.850 MOTION, AND MAKE NONE OF
THE ALLEGATIONS, THAT WOULD
REALLY SUPPORT SAY IN THIS
CASE, THERE WERE NO
ALLEGATIONS!!$$!!!!!!!!!!!!!!!!!!!!
ALLEGATIONS, MADE, WITH THE
NAMES OF THE WLGZS WHAT IT
WERENESSES WERE GOING TO SAY
HOW WITNESSES TESTIMONY WOULD
HAVE BEEN HELPFUL TO THE
DEFENSE OR ANY OF THOSE KINDS
OF ALLEGATIONS, SO BASICALLY,
MY MIND, WAS A SHELL
ALLEGATION, OF INEFFECTIVE
ASSISTANCE OF COUNSEL, AND
BRYANT, WE SAY WE ARE NOT
AUTHORIZE$$!!!!ING SHELL MOTIONS.
SO HOW DO YOU SQUARE WHAT YOU
ARE SAYING AND SOMEONE FILES
WHETHER IN ESSENCE A SHELL
MOTION, WITH OUR CASE LAW?
>> JUSTICE QUINCE I DON'T
THINK THIS WAS A SHELL MOTION,
IT WAS DEFECTIVE, AND
DEFICIENT!!$$!!!!!!!!!!!!!!!!
DEFICIENT, CLEARLY A SHELL
MOTION TO ME WOULD SIMPLY BE
SAYING, MY LAWYER WAS
INEFFECTIVE!!$$!!!!!!!!!!!!!!!!!!!!
INEFFECTIVE, DIDN'T DO A GOOD
JOB.
THAT I THINK WOULD BE A SHELL
MOTION.
HERE THERE IS SOMETHING THAT,
PERHAPS, COULD BE FLESHED OUT.
AND SO ALL I'M SAYING IS IF
THERE IS SOMETHING MORE, HOW
DIFFICULT IS IT --
>> HOW FAR DO WE GO?
I MEAN IF YOU HAVE SAY AN
ALLEGATION THAT REQUIRES, SAY,
FIVE DIFFERENT THINGS, TO
REALLY MAKE IT A GOOD
ALLEGATION, OF AN INEFFECTIVE
ASSISTANCE OF COUNCIL CLAIM DO
YOU UNDERSTAND TWO OF THEM, I
MEAN THAT IS -- DOES THAT
AMOUNT TO SAY THAT -- YOU GET
AN OPPORTUNITY TO TO AMEND, OR
IF YOU DO LEAVE OUT ONE OF
THEM IS THAT -- I'M JUST
STRUGGLING HERE WITH -- THERE
IS A POINT WHEN A MOTION IS
JUST LEGALLY INSUFFICIENT.
>> THERE -- THERE IS AND I
THINK ONE KNOWS IT WHEN ONE
SITES, BUT THIS IS NOT THAT
KIND OF CASE AND I GO TO WHAT
JUSTICE LEWIS SAID IN HIS
DISSENTING OPINION IN NELSON
THE ODOM STANDARD, I THINK
THAT WOULD BE THE ULTIMATE
TEST SHOULD BE MET IDENTITY IT
WERENESSES SHOULD HAVE BEEN
CALLED, AND, WHAT THEY WOULD
HAVE SAID, AND HOW THERE WOULD
HAVE BEEN PREJUDICE, HOW THAT
WOULD SUPPORT PREJUDICE SO I
THINK IF THE IF THE COURT
STRIKES THE 3.850, WITH LEAVE
TO AMEND, SAYING LEAVE TO
AMEND SEE, NELSON,SEE MILTON,
AND THEN IF THE AMENDMENT
DENTISTRY MEET THAT STANDARD
THEN I THINK THE COURT THE
TRIAL COURT AND THIS COURT
COULD FEEL COMFORTABLE, IN
SAYING, THIS WAS A DEFICIENT
3.850 --
>> ISN'T IT POSSIBLE TO DRAW A
DISTINCTION WHEN WHAT WE MAKE
TECHNICAL VIOLATIONS GOING
BACK TO THE ODOM KIND OF
APPROACH!!$$!!!!!!!!!!!!!!
APPROACH, IT SEEMED TO ME
THERE REALLY ISN'T A TANG
DIFFERENCE BETWEEN A MOTION
THAT SAYS -- MY ATTORNEY WAS
INEFFECTIVE!!$$!!!!!!!!!!!!!!!!!!!!
INEFFECTIVE, JUST THAT, NO
STRICKLAND KIND OF APPROACH,
AND ONE THAT SAYS -- THIS IS
THE WITNESSES THIS WHAT THE
WITNESSES WOULD HAVE SAID THIS
HOW IT WOULD HAVE IMPACTED MY
CASE, BUT THERE WAS THE
ABSENCE OF THE ALLEGATION THAT
IT WAS AVAILABLE.
STRUGGLING WITH THOSE TWO, I'M
NOT SURE THAT THAT CONCEPT OF
IT WERENESS NOT BEING
AVAILABLE THAT CONNECT --
TECHNICAL REQUIREMENT ON THE
SAME LEVEL WITH ONE DOESN'T
SAY ANYTHING OTHER THAN
CONCLUSION COULD YOU HELP WITH
THIS.
>> I THEY IF SIMPLY CONCLUSION!!$$!!!!!!!!!!!!!!!!!!
CONCLUSIONRY THEY LAWYER WAS
INEFFECTIVE DIDN'T DO GOOD JOB
FOR ME THAT WOULD BE SHELL
MOTION I THINK COULD BE DENIED
ON ITS FACE I'M TRUPTH --
TROUBLED BY THAT TOO IN THE
SITUATION WHERE YOU HAVE --
DEFENDANT, WHO ARE OPERATING
ON THEIR OWN, AND TO ME IT IS
NOT SUCH A BIG BURDEN TO SAY
LEAVE TO AMENDMENT SEE NELSON
SEE WHAT THEY CAN DOVMENT IT
IS A SIMPLE, ONE PARAGRAPH
ORDER, AND THEN, YOU COULD SEE
WHETHER OR NOT WOULD IT BE
CURED!!$$!!!!!!!!
CURED, WE ARE TALKING ABOUT
LIBERTY HERE WE ARE TALKING
ABOUT PEOPLE TRYING TO ATTACK,
A COLLATERALLY ATTACK THEIR
CONVICTION.
>> I'M TRYING TO UNDERSTAND
HOW FAR YOUR ASKING US TO GO.
MY UNDERSTANDING OF THE
CURRENT LAW IS IF A INITIAL
POSTCONVICTION MOTION IS
DISMISSED FOR INSUFFICIENCY,
AND THE DEFENDANT FILE AN
AMENDED CLAIM WITHIN THE
TWO-YEAR PERIOD EVEN UNDER THE
CURRENT LAW, THE COURT MUST
ACCEPT THAT MANY PLEADING.
>> WELL, NELSON,AND BRYANT
TALK ABOUT REALLY A REASONABLE
TIME SUGGESTING 30 DAYS, SO --
>> BUT I THINK --
>> IN BRYANT WHAT HAPPENED WAS
BY THE TIME THE CLAIM WAS
DISMISS!!$$!!!!!!!!!!!!
DISMISSED, THE LIMITATIONS
PERIOD HAD EXPIRED THE
ONE-YEAR PERIOD.
BUT I THOUGHT THAT WE HAD LAW
AND THERE IS LAW IN DCAS THAT
SAY IF THE AMENDED PLEADING IS
FILED WITHIN THE TWO-YEAR
PERIOD THE COURT HAS TO
ACCEPT, THAT BECAUSE THE
PREVIOUS DISMISSAL HAD NOT
BEEN ON THE MERITS.
>> WELL, YOU KNOW I'M NOT SURE
WHAT THE ANSWER TO THAT IS
JUSTICES CANTERO BUT I THINK
LOOKING AT NELSON LOOKING AT
MILTON LOOKING AT BRYANT I
THINK WE ARE TALKING ABOUT
LEAVE TO AMEND WITHIN A
REASONABLE PERIOD OF TIME AND
IF THAT ISN'T DONE THEN IT
COULD BE DISMISS I DON'TED
THINK WOULD BE O PEN ENDED
KIND OF SITUATION.
>> I UNDERSTAND ALL I'M SAYING
IS THAT FROM MY UNDERSTANDING
OF THE CURRENT LAW YOU ARE NOT
ASKING US TO GO VERY FAR.
THE ONLY DIFFERENCE IN THE LAW
BETWEEN WHAT IT IS NOW AND
WHAT YOU ARE ASKING US TO DO
IS IF THE MOTION THE DEFICIENT
MOTION WAS FILED RIGHT AT THE
TWO-YEAR PERIOD, AND THE
AMENDED MOTION WOULD BE FILED
AFTER THE DEADLINE HAD EXPIRED
BECAUSE IF THE AMENDED MOTION
CURRENTLY IS FILED BEFORE THE
DEADLINE EXPIRES EVEN UNDER
CURRENT LAW WOULD YOU HAVE TO
SET UP.
THE COURT HAS TO SET UP AND
LOOK AT IT ON THE MERITS.
>> I'M NOT ASKING THE COURT GO
TOO FAR I'M JUST SAYING THAT
WOULD RELATE BACK, THAT
AMENDED MOTION WOULD RELATE
BACK TO THE TIME --
>> HOW ABOUT BECAUSE HE IS --
JUSTICE CANTERO IS ASKING YOU,
I BELIEVE -- ABOUT SUBSECTION
F, OF 3850.
ARE YOU FAMILIAR WITH THAT.
>> YES BHAP DOES IT SAY.
>> I DON'T HAVE IT RIGHT IN
FRONT OF ME BUT BASICALLY --
>> I HAVE IT IN FRONT OF ME I
DON'T WANT TO BE LABOR THIS,
BECAUSE -- JUSTICE --
>> A TEST.
>> -- SUCCESSIVE MOTION BY O
MAY BE DISMISSED IF THE JUDGE
FINDS IT FAILS TO ALING NEW OR
DIFFERENT GROUNDS FOR RELIEF
AND THE PRIOR DETERMINATION
WAS ON THE MERITS, OR IF NEW
AND DIFFERENT GROUNDS ARE
ALLEGED THAT JUDGE FINDS THAT
THE FAILURE TO THE MOVEMENT OF
THE OR THE ATTORNEY TO A --
ASSERT THOSE GROUNDS IN A
PRIOR MOTION CONSTITUTED AN
ABUSE OF THE PROCESSOR
GOVERNOR -- PROCEDURE GD HE
GOVERNED BY THESE RULES
ALLUDING TO CASE LAW THAT REAL
SAYS THESE DISMISSALS,
SWIEFRPS TALKING ABOUT HERE,
IN THE PAST, HAD BEEN TREATED,
AS DISMISSALS WITHOUT
PREJUDICE, AS LONG AS A THE
NEXT TIME THEY MAKE AN EFFORT
AT IT MAYBE GET IT RIGHT AS
FAR AS GETTING IT BEFORE THE
COURT, IS WITHIN THE TWO-YEAR
PERIOD!!$$!!!!!!!!!!
PERIOD -- I'M WONDERING
WHETHER OR NOT YOU KNOW WHAT
WE ARE DEBATE$$!!!!ING HERE IS REAL
NOT COVERED BY SUBSECTION F,
THAT IS, IF THE YOU KNOW, ALL
THESE RULES WERE DRAFTED
INITIALLY SO THAT PRO SE
PRISONERS WOULD BE SPOON-FED
HOW TO DO THIS.
AND ACTUALLY SO THAT TRIAL
COURT JUDGES ALSO COULD JUST
GO YOU KNOW, THE GO DOWN A
LIST, AND ADJUDICATE THEM TOO.
SO MANY WHILE -- DOESN'T F,
REAL -- REALIZE -- REALLY!!$$!!!!!!!!!!
REALLITAINING CARE OF THAT IF
YOU FILE ANOTHER ONE, NOW YOU
LAY OUT, YOU KNOW, FACTS, THAT
SAY, WELL, THERE WAS AN
EYEWITNESS TO THE CRIME I TOLD
MY LAWYER ABOUT IT.
AND THE EYEWITNESS SAID THAT
IT WAS A GIANT EIGHT FOOT
PERSON, THAT COMMITTED THE
CRIME AND I'M ONLY 4'2", AND
NOW YOU HAVE GOT SOMETHING
GOING, YOU KNOW MAYBE THAT HAS
TO BE HEARD.
BUT WHY DOES -- WHY DOESN'T
SUBSECTION F REALLY TAKE CARE
OF THAT EXCEPT IN THE SKWAIGS
WHERE THE TWO-YEAR PERIOD MAY
HAVE PASSED.
>> ONE COULD MAKE THAT
ARGUMENT, THAT F WOULDTAINING
CARE OF IT ALTHOUGH I DON'T
THINK THIS A SUCCESSIVE MOTION
I THINK THAT IS THE TROUBLE
HERE.
WHEN YOU LOOK AT THIS
CLASSICALLY WE ARE TALKING
ABOUT AMENDMENTING THE MOTION
THAT YOU FILE IT JUST SEEMED
TO ME MUCH MORE EFFICIENT
FRENCH THE COURT POT VOINT OF
-- POINT OF VIEW TO DEAL WITH
IT AS AMENDMENT NOT ENCOURAGE
A SECOND SUCCESS IFK MOTION.
>> THE ON THE PART IN
SPOON-FEEDING THE JUDGE SAYS
THE JUDGE CAN LOOK ATMOSPHERE
THE MOTION, AND YOU KNOW,
WHILE THIS ISN'T A CIVIL
MATTER, OR MAYBE IT IS, HABEAS
CORPUS HABEAS CORPUS IF IT
DOESN'T STATE A CAUSE OF
ACTION SUFFICIENTLY THE JUDGE
CAN DISMISS IT, IT TELLS THE
JUDGE TO DO THAT THAT IS WHAT
THE JUDGE DID HERE.
>> IT DOES BUT THIS $$COURT'S
CASES EVEN TALK IN TERMS OF
DUE PROCESS, BRYANT TALKS IN
TERMS OF DUE PROCESS AS MATTER
OF DUE PROCESS ONE SHOULD
SHOULD -- SHOULD HAVE THE
OPPORTUNITY TO AMEND SEEMS
MUCH MORE EFFICIENT TO SAY
HERE IS THE 3.850, I DON'T
THINK ENCOURAGE$$!!ING A SECOND
SUCCESSIVE ONE TO TRY TO CURE
IT IS AS EFFECTIVE, AS SAYING,
IT IS DEFECTIVE, LEAVE TO
AMEND --
>> AREN'T YOU ARE GETTING TO
THE POINT THOUGH WHERE YOU ARE
ASKING REALLY FOR THE TRIAL
JUDGE TO SORT OF DO A TUTORIAL
IN HERE, AND SAY, WELL, YOU
KNOW, I HAVE EXAMINED THIS,
AND YOU SAID SOMETHING ABOUT
WITNESSESES OR WHATEVER SO I'M
GOING TO DENY THIS WITHOUT
PREJUDICE FOR YOU TO NOW NAME
THOSE WITNESSES TELL ME WHAT
THEY WOULD SAY THAT YOU WILL
THAT IS NOT THE ROLE OF THE
TRIAL JUDGE TO EXPLAIN WHAT
MIGHT BE THERE OR MIGHT NOT BE
THERE.
YOU KNOW, TO THE PERSON FILING
THE MOTION.
NOW, WE REALLY ARE ALREADY,
TRIAL JUDGES FEEL OVERWHELMED
BY THIS, AND THE WHETHER THEY
ARE OR NOT IS A DIFFERENT
STORY.
BUT WHY -- I AM HAVING
DIFFICULTY OF WHY THIS
PROVISION IN THE RULES DOES --
DOESN'T TAKE CAVE IT.
>> GO AHEAD AND ANSWER QUICKLY
YOU ARE USING UP ALL YOUR
TIME.
>> LET ME.
>> JUSTICE SAYING IT DOESN'T
TAKE CARE OF IT.
>> I'M SAYING IF THE COURT
FEELS THAT F TAKES CARE OF IT
THAT IS SATISFY FREE OEBL
WOULD DO THE JOB THE OTHER
POINT THAT I WANTED TO MAKE
THAT IS IN CIVIL CASES, TRIAL
JUDGES DO GRANT LEAVE TO
AMENDMENT AND BASICALLY IN--
TO AMEND INSTRUCT THE
PLAINTIFF WHAT IS DEFECTIVE
LET ME ADD ONE LAST THING IN
LAST MINUTE, HERE WHEN HE
FILES HIS 3.850, GASKIN WAS A
CONTROLLING LAW, AND UNDER GAS!!$$!!!!
GASKIN, HE DIDN'T HAVE TO PUT
ANYTHING IN, THAT FOOTNOTE IN
GASKIN WAS RECEDED FROM IN
NELSON LADER ON BUT AT THE
TIME THAT HE 2350I8D HIS
COMPLAINT!!$$!!!!!!!!!!!!!!!!
COMPLAINT, NO MATTER WHAT THE
COURT DOES, WITH THE LARGER
ISSUE IN THIS CASE, HE IS
ENTITLED TO AN AMENDMENT UNDER
GASKIN STANDARD BECAUSE THAT
WHAT IS CONTROLLED $$MISS.850
MOTION AT THAT TIME.
FOR ALL OF THESE REASONS WE
THINK THAT THE FOURTH DCA
DECISION SHOULD BE REVERSED.
>> MR. HAMEL?
>> MAY IT PLEASE THE COURT
MARK HAMEL FOR THE STATE OF
FLORIDA.
IN BRYANT, THIS COURT SET
FORTH CRITERIA THAT IS FOR
PRACTICAL PURPOSES, TRIAL
COURTS CAN CUES IN DETERMINE
WHETHERING TO DENY A CLAIM AND
GRANT LEAVE TO AMEND OR NOT IN
A TRIAL COURT SHOULD LOOK TO
WHEN WE ARE99TALKED ABOUT A
DEFICIENCY STRICTLY A MATTER
OF FORM OVER SUBSTANCE.
>> -- LET ME LET ME ASK YOU
THIS.
JUST AS A MATTER OF
FUNDAMENTAL FAIRNESS AS MR.
ROGOW SEEMS TO BE ARGUE$$!!!!ING OR
MATTER OF COMMON SENSE WE'VE
GOT A SITUATION IN 3.850 IN
WHICH THEY ARE -- PRO SE, AND
WHAT WE REALLY ARE STRIVING TO
DO IS TO HAVE AN
ADMINISTRATIVE PROCESS IN OUR
COURTS SO THAT THE SUBSTANTIVE
MATTERS WHICH THEY CAN RAISE
ARE GOING TO BE HEARD ON THEIR
MERITS!!$$!!!!!!!!!!
MERITS.
BUT THAT THOSE THAT AREN'T
SUBSTANTIVE ARE CULLED OUT,
AND SO THAT THE COURTS ARE NOT
OVERWHELMED BY THE FACT THAT
WE'VE GOT SO MANY PEOPLE IN
PRISON IN THIS STATE.
AND WHAT BOTHERS ME IS THAT AS
NELSON STATES, WHETHERWHERE
THERE IS A MATTER THAT CAN IN
GOOD FAITH BE AMENDED SO THAT
THE MATTER CAN GO FORWARD ON
ITS MERITS AND BE HEARD WHY
ISN'T THAT THE MOST EFFICIENT
AND FAIREST THING TO DO?
>> YOUR HONOR IS I -- IT IS
FAIREST THING TO DO WHEN JUST
TALKING ABOUT A TECHNICAL
VIOLATION TECHNICAL DEFICIENCY
BUT CERTAIN CLAIMS DON'T HAVE
ANY SUBSTANCE TO THEM.
>> WELL, I GUESS THE PROBLEM
IS THAT AS MR. ROGOWERE YOU.
IS TRYING TO -- DISCUSS SHELL
MOTIONS!!$$!!!!!!!!!!!!
MOTIONS, AND YOU ARE TRYING TO
TALK ABOUT TECHNICAL THINGS IT
IS WHAUL THOSE MATTERS ARE,
ALL IN THE MIND OF THE
BEHOLDER!!$$!!!!!!!!!!!!!!
BEHOLDER, AND IN A SPECIFIC
CASE WE'VE GOT TO SOME UP WITH
SOMETHING THAT HOPEFULLY WILL
FIT MANY CASES.
>> YOUR HONOR, WHEN THIS COURT
CONSISTENTLY SAID IS THAT IF A
METAPHORANT FAIL TO ALING ANY
ASPECT OF DEFICIENT
PERFORMANCE OR ANY ASPECT OF
PREJUDICE, THEY ARE NOT
ENTITLED TO EVIDENTIARY
HEARING, THAT PLEADING IS SO
DEFICIENT!!$$!!!!!!!!!!!!!!!!
DEFICIENT, THAT THE TRIAL
COURT SHOULD BE ABLE TO DENY
INSIGHT BUT WE ARE NOT TALKED
ABOUT AN EVIDENTIARY HEARING,
AND THIS IS -- MY PROBLEM,
WHAT WE MAY HAVE CREATED
INADVERTENTLY!!$$!!!!!!!!!!!!!!!!!!!!!!!!
INADVERTENTLY, AS JUSTICE
LEWIS WAS MENTIONING THE MAGIC
WORDS SOME OF US FELT NELSON
NEEDED TO SAY AVAILABLE FOR
TRIAL THAT SORT OF -- I MEAN
THAT'S GOING TO BE PART OF THE
APPROVE, NOW THAT IS IN THE
RULE.
IT WASN'T AT THE TIME NOW WE
HAVE FOR FAILURE TO CALL
WITNESSES THE RULE SPOON
FOOEDZ THE LITIGANT TO --
WHATEVER THE ALLEGATION, MY
CONCERN IS THAT WHAT WE WOULD
BE SAYING THAT IS IF A IF A
ALLEGED FACT THAT THEY DON'T
USE THE MAGIC WORD AND IT WAS
-- IT IS PREJUDICED THE OUT!!$$!!!!
OUTCOME OF THE CASE, WE GOING
TO SAY WE WILL LET THAT ONE BE
AMENDED, BUT, ON THE OTHER
HAND!!$$!!!!!!
HAND, THEY HAVE USED THE MAGIC
WORDS!!$$!!!!!!!!
WORDS, THEY HAVE ALLEGED SOME
FACTS BUT THEY HAVEN'T QUITE A
TIED IT TOGETHER, AS WE TELL
THEM IN THE FORUM WHICH NO ONE
MNGS THE FORM THE FOLLOW NOW
THEY ARE SUPPOSED TO TELL
THEIR STORY BRIEFLY WITHOUT
CITING CASES OR LAW, SO YOU
ARE NOW SAYING IF IT IS
TECHNICAL!!$$!!!!!!!!!!!!!!!!
TECHNICAL, LET THEM AMEND, BUT
IF THERE ARE FACTION, THAT
THEY JUST -- FACT US THE DON'T
QUITE STATE CLAIM FOR RELIEF
THERE SHOULD BE MORE FACTS
THOSE SHOULD BE DENIED THAT IS
WHAT IT SEEMS THE FOURTH
DISTRICT ENDED UP SAYING SO
THAT WELL YOUR HONOR, YES,
WHAT IT IS.
>> YES, AND YOU THINK THAT IS
A GOOD THING IN OTHER WORDS TO
MAKE PEOPLE AMEND IN PRISON IF
THEY LEFT SOMETHING TECHNICAL
OUT BUT IF ALMOST IN THE
BALLPARK BECAUSE THEY ALLEGED
A LOT OF FACTS, NOT TO LET
THEM AMEND?
>> NO, YOUR HONOR, BECAUSE IN
THIS CASE, MR. SPERA DIDN'T
EVEN GET IN THE BALLPARK HE
ALLEGED A LAUNDRY LIST OF
COMPLAINTS ABOUT HIS ATTORNEY
AND DID NOT TIE THAT ALL IN
ANY WAY TO HOW IT PREJUDICED
HIM AT TRIAL.
THE PRACTICAL THING IS THAT
WHEN SOMEONE HAS A VALID
CLAIM, ABOUT PREJUDICE, OR
INEFFECTIVE ASSISTANCE AT
TRIAL, THEY RAISE THESE CLAIMS
AND THEY SAID, MY ATTORNEY
SHOULD HAVE CALLED MY BROTHER
OR MY ATTORNEY SHOULD HAVE
OBJECTED TO THIS PIECE OF
EVIDENCE, AND THEY TRY$$!!!!ITO TIE I
HAD TOGETHER THE JURY WOULD
HAVE HEARD THIS WORK NOT HAVE
HEARD THIS, AND I WOULD HAVE
BEEN ACQUIT FIND THIS CHARGE,
SO --
>> BUT IN THESE SITUATIONS
WHERE THERE ARE THINGS, THAT
ARE MISSING IN THE TRIAL JUDGE
LOOKS AT A MOTION, FOR -- FO
POWER NO POSTCONVICTION
TECHNICALLY DOES NOT STATE A
CLAIM MANY WHY ISN'T IT A
BETTER RULE AS
MR. ROGOW PROPOSES THAT YOU
GIVE THESE DEFENDANTS, ONE
OPPORTUNITY TO AMEND AND I'M
NOT ADVOCATE$$!!!!ING THE TRIAL JUDGE
HAS TO SAY IN THIS CLAIM, YOU
OMITTED X, YIZ, THOSE KINDS OF
THINGS!!$$!!!!!!!!!!
THINGS, BUT TELL THE
DEFENDANT, THAT HIS -- MOTION
IS INSUFFICIENT, AND YOU HAVE
AN OPPORTUNITY TO AMEND, WHY
ISN'T THAT A BETTER RULE
RATHER THAN WORRYING ABOUT
WHETHER A TECHNICAL ARE,
SUBSTANTIAL FORM OVER
SUBSTANCE OR WHATEVER.
>> WELL BECAUSE YOUR HONOR IT
IS CLEAR THAT THERE ARE
PLEADING REQUIREMENTS FROM THE
RULE, AND IF NIF THOSE ARE NOT
MET, SUCH AS SIGNING IT OR THE
PROPER OATH HE SHOULD BE
GRANTED LEAVE TO AMEND THAT
THIS COURT HAS ALSO SAID IF
SOMEONE FAILS 230 INCLUDE
TALKING ABOUT A WITNESS NOT
AVAILABLE FOR TRIAL IN EFFECT
ASSISTANCE COUNSEL THAT IS
SOMETHING THAT IS --
>> YOU SEE WHAT YOU ARE DOING
YOU ARE P$$ARSING OUT, IF HE
MISSES THIS, THEN GETS AN
OPPORTUNITY TO AMEND, BUT IF
HE -- IN ANOTHER SITUATION IF
HE MISSES SOMETHING ELSE HE
DOESN'T, WHY ISN'T IT JUST A
BETTER RULE THAT IF THIS
INSUFFICIENT, GIVE HIM 30 DAYS
TO AMEND, ONCE HE AMENDED OR
NOT AMENDED, YOU CAN MOVE ON
FROM THERE
>> YOUR HONOR BECAUSE THIS
COURT HAS SAID, THAT THE
DEFENDANT HAS TWO YEARS, TO
RAISE A MOTION FOR
POSTCONVICTION RELIEF, AND TWO
YEARS, IS A SUFFICIENT AMOUNT
OF TIME WITH DUE DILIGENCE, TO
BRING A PROPER CLAIM.
>> ISN'T THAT WHAT HAPPENS NOW
UNDER THE CURRENT RULES YOU
REAL REALIZE DO HAVE A CHANCE
TO AMEND ALTHOUGH WE DON'T USE
THE SAME NOMENCLATURE IT IS A
SUCCESSIVE MOTION INSTEAD OF
AMENDED MOTION IF THE PREVIOUS
MOTION HAS NOT BEEN DISMISSED
ON THE MERITS IT WAS SOME
PLEADING DEFICIENCY, THEN THE
DEFENDANT HAS AN OPPORTUNITY
TO FILE A SUCCESSIVE MOTION
WHERE HE REPAIR AS THE
DEFICIENCY AS LONG AS WITHIN
THE TWO YARD ---YEAR PERIOD
APPEARED WE ARE NOT REALLY
TALKED VERY MUCH HERE.
>> YOU ARE RIGHT I WOULD ADD
ONE THING YOU ARE RIGHT THE
DEFENDANT MAY BRING CLAIM ANY
POINT WITHIN A TWO-YEAR PERIOD
AS LONG AS PREVIOUS CLAIM LAS
NOT BEEN DENIED ON THE MERITS
THE RULE ALSO ALLOWS
DISCRETION EVEN IF A PRIOR
CLAIM HAS BEEN PROPERTY AND
DETERMINED ON THE MERITS, THE
RULE SAYS A TRIAL COURT MAY
DENY THIS SUCCESSIVE SO,
THEREFORE!!$$!!!!!!!!!!!!!!!!
THEREFORE, THE TRIAL JUDGE HAS
AN OPPORTUNITY TO LOOK AT THE
CLAIM, AND TO LOOK AT THE
RECORD, AND CAN SAY, YOU KNOW,
WELL HE WAS JUST MISSING A
SMALL THING.
>> ISN'T MORE EFFICIENT
INSTEAD OF THE TRIAL JUDGE
HAVING TO LOOK AT THE FIRST
MOTION, WHICH HE DISMISSED AND
THEN THE SUCCESSIVE FILED SIX
MONTHS LATER, AND KIND OF DO A
COMPAR AND CONTRAST ISN'T IT
MORE EFFICIENT IF THE JUDGE
SAYS I'M GOING TO DISMISS
THIS, WITH LEAVE TO AMEND AND
FILE AN AMENDED ONE AND THEN
SEE MAKE SURE THE AMENDED ONE
CURES THE DEFICIENCY WHY ISN'T
THAT MORE EFFICIENT WAY TO
ACCOMPLISH THE SAME THING
SMIET IS FINE YOUR HONOR IF A
CONNECT -- TECHNICAL
DEFICIENCY BUT IN SOME
K4R5I78Z A TRIAL COURT CAN
LOOK AT IT AND IN THIS CASE
THIS COURT CAN SAY -- SEE THE
RECORD INCLUDES THE ENTIRE %%|"`E TRIAL,
ATTACHED AS PART OF THE RECORD
--
>> WHAT DO YOU CONSIDER A
TECHNICAL DEFICIENCY, I MEAN,
IF YOU PARSE IT OUT INTO
TECHNICAL DEFICIENT EVERYONE
ELSES VERSUS SOMETHING ELSE,
WHAT IS A TECHNICAL DEFICIENCY.
>> IT IS ANY FAILURE TO COMPLY
WITH RULE 3.850, TO INCLUDE A
PROPER OATH, OR INCLUDE THE
NECESSARY DOCUMENTS.
VERSUS SOMEONE WHO ABSOLUTELY
ASSERTS NO FACTS AS TO
PREJUDICE OR --
>> UNDER MOST OF THESE
SITUATIONS WE SEE, ACROSS THE
LAW, WHETHER CRIMINAL, OR CIVIL,
WE TEND TO -- DO WE NOT AT THE
STAGE WHEN WE ARE TRYING TO
DETERMINE WHAT IT IS WE ARE
GOING TO DETERMINE, IT -- FOLKS
KNOW WHAT THE OBJECTION IS, TO
WHAT THEY HAVE SAID AND HAVE
THE OPPORTUNITY TO CAPTURE WHAT
THE DISPUTE IS ABOUT?
IT IS A DIFFERENT STORY ONCE
YOU GO TO TRIAL I ME, PUT ON
YOUR CASE AND IF YOU MISSED
SOMETHING THEN WE HAVE RULES
THAT DO THAT.
BUT AT THE STAGE WHERE WE ARE
TRYING TO FORMULATE WHAT IS THE
DISPUTE ABOUT, DON'T WE
GENERALLY HAVE SOME KIND OF
MECHANISM THAT LETS FOLKS, IF
THEY HAVE A DEFICIENCY WITHOUT
PARSING, THAT PERMITS THEM TO
AMEND THAT TO -- YOU DIDN'T
SATISFY STRIKLAND BECAUSE YOU
DID NOT ALLEGE HOW THE ACT
IMPACTED YOUR CASE.
I CAN SHOW YOU THAT SO YOU CAN
FILE THE AMENDED MOTION.
WHAT -- DON'T WE NORMALLY DO
THAT IN OTHER AREAS, OTHER
AREAS OF EVEN THE CRIMINAL LAW.
>> WELL, I WOULD POINT TO THE
GASKIN CASE IN 1999.
THE GASKIN CASE, THIS COURT
SAID NO EVIDENTIARY HEARING AND
AT THAT POINT, THERE WAS NO GO
BACK TO AMEND THE TRIAL COURT
HAD NOT GRANTED LEAVE TO AMEND
IN THAT CASE AND THERE WAS ALSO
-- I MEAN, THE VARIAN CASE AND
LOOKING AT THE CLAIM, WHERE
THERE IS ABSOLUTELY NO
ALLEGATION AS TO PREJUDICE,.
>> ARE WE TALKING ABOUT WHO
HAPPENS THE BURDEN TO ASK --
LET'S ASSUME THE INDIVIDUAL IS
REPRESENTED BY VERY COMPETENT
COUNSEL.
AND THAT COUNSEL GOES TO A
HEARING AND THEY SAY THIS IS
INSUFFICIENT AND DISCUSS WHY
AND COUNSEL SAYS, I WOULD LIKE
LEAVE TO AMEND AND YET WE HAVE
SOMEONE WHO IS NOT A LAWYER AND
HAS NO IDEA AND IS NOT EVEN
PRESENT AT THE TIME THIS IS
GOING ON AND IT IS INSUFFICIENT
AND WE DON'T EACH DISCUSS THE
CONCEPT OF AMENDING IT, IS THAT
WHAT HAPPENED?
IS THAT THE PRACTICAL --
REALITY OF WHAT GOES ON ON THE
GROUND?
>> NO, YOUR HONOR, THE REALITY
IS THAT INMATES HAVE A LOT OF
CASE LAW TO INSTRUCT ON HOW TO
PROPERLY FILE A 3850 MOTION,
AND THEY KNOW WE -- HAS TO
INCLUDE ALLEGATIONS OF
PREJUDICE, AND PERFORMANCE, IF
IT IS INEFFECTIVE --
>> YOU SAY THAT BUT THE FORM
I'M LOOKING AT 3.987 REALLY
DOESN'T TELL THEM THE AT ALL
THAT THAT IS WHAT THEY HAVE TO
DOCUMENT IT SAYS THAT THEY CAN
CHECK OFF DENIAL OF INEFFECTIVE
ASSISTANCE OF COUNSEL AND THEN
IT SAYS, GIVE THE FACTS TO TELL
YOUR STORY.
WITHOUT CITING CASES OR LAW.
THE WHOLE IDEA OF THIS RULE WAS,
YES, WE WANTED FACTS.
WE DIDN'T WANT THERE TO BE SOME
TECHNICAL PLEADING AND NOW ALL
OF A SUDDEN WE ARE TAKING 3.850
WITHOUT WARNING TO THE INMATES,
BECAUSE I'M -- I'M CONCERNED
ABOUT THIS CASE BUT CONCERNED
-- AND SAYING, YOU BETTER DOT
EVERY I AND WE CONCERN.
>> I LOOK AT WHAT HAPPENED IN
THE CIVIL ARENA WITH THE
AUTOMOBILE ACCIDENT CASE, YOU
SAY THAT AN ACCIDENT OCCURRED,
THERE WERE NEGLIGENT -- THEY
WERE NEGLIGENT AND IT WAS A
LEGAL CAUSE OF DAMAGES AND
THAT'S ALL THE FORM SAYS YOU
HAVE TO DO.
NOTHING ABOUT FACT, SO EXPLAIN
TO ME WHERE WE HAVE DEVELOPED
THE RULES THAT -- FACTS ARE
ALLEGED THAT IF THEY ARE IN
THAT BLACK HAWK, WITH THE FACTS,
THAT THEY ARE GOING TO BE
DISMISSED IF THEY HAVEN'T GIVEN
ENOUGH FACTS WITHOUT LEAVE TO
AMEND.
>> YOUR HONOR, THERE ARE TWO
PLEADING REQUIREMENTS.
FIRST IS A PLAEDING REQUIREMENT
OF THE RULE 3.850.
AND IN CASES OF INEFFECTIVE,,
ASSISTANCE OF COUNSEL THERE IS
A PLEADING REQUIREMENT END
WHERE IT WOULD COME IN AS FACT
AND THE PERSON WOULD HAVE --
>> THAT'S WHAT I AM ASKING,
WHERE DOES IT SAY THAT IN THE
RULES, TO PUT THE INMATE ON
NOTICE.
>> AND WHERE DOES IT SAY IT IN
THE FORM.
>> IT JUST SAYS INCLUDE A BRIEF
STATEMENT OF THE FACTS.
>> EXACTLY.
>> AND THAT SHOULD INDICATE TO
AN INMATE WHO, AT TRIAL IN THIS
CASE TO SAY MORE THAN MY
ATTORNEY SHOULD HAVE CALLED
WITNESSES.
>> FORGET -- MY PROBLEM IS,
WHAT I'M SAYING IS, SOMEONE'S
LIFE IS AT STAKE, ARE THEY
GOING TO SPEND THE REST OF
THEIR LIVES IN PRISON, WE'RE
GIVING THEM LESS OPPORTUNITY
THAN SOMEBODY WHO HAS BEEN
INVOLVED IN A FENDER BENDER AND
DOESN'T THAT SEEM AT ALL TO BE
A REVERSE OF WHAT WE NEED TO BE
DOING.
>> WELL, I WOULD DISAGREE,
ESPECIALLY IN THIS CASE, WHERE
THE DEFENDANT HAD
REPRESENTATION OF COUNSEL, AND
HE HAD THE BENEFIT OF SEEING
THE STATE RESPONSE, HE COULD
AMEND HIS MOTION AT ANTICIPATE
TIME BEFORE THE TRIAL COURT
RULED AND HE HAD A COMPLETE
LIST FOR THE STATE'S RESPONSE,
OF THE DEFICIENCY -- HE DID NOT
THINK -- AND FURTHERMORE, HE
DID NOT EVEN MOVE TO AMEND THIS
IS CLAIM AFTER IT HAD BEEN
DENIED.
>> I THINK THAT WE ARE GOING TO
HAVE TO DEAL WITH THIS IN
PIECES.
BECAUSE IT IS -- WHEN YOU DEAL
WITH IT IN A -- TRYING TO COVER
ALL OF THE FACTS, THAT COULD
POSSIBLY COME IN YOU REALLY RUN
INTO A PROBLEM, YOU KNOW?
AS BEING A -- THE AUTHOR OF
NELSON, I THINK WHAT I THOUGHT
WE WERE DOINGEN NELSON IS WE
WERE DEALING WITH A VERY
DISCRETE MATTER.
AND WE WERE DEALING WITH A
DILEMMA OF WHETHER, WHEN
SOMEONE ALLEGES THAT THEY HAVE
THEIR COUNSEL WAS INEFFECTIVE
BECAUSE OF THE FAILURE TO CALL
A WITNESS, WHETHER THAT CASE
SHOULD HAVE -- GO FORWARD TO AN
EVIDENTIARY HEARING, JUST ON
THAT BARE ALLEGATION, OR
WHETHER WE SHOULD ALLOW THE
DEFENDANT TO FLESH THAT OUT, SO
THAT WE KNOW -- THE TRIAL COURT
KNOWS -- THAT THERE IS SOME
BASIS OF WHO -- WHETHER THE
WITNESS WAS AVAILABLE OR NOT.
NOW, ISN'T IT PREFERABLE FROM
THE STATE'S STANDPOINT TO FLESH
THAT OUT TO THE -- SO THE
PERSON HAS TO MAKE A GOOD-FAITH
STATEMENT IN THE MOTION, THAT
WE HAVE A WITNESS, WHO THAT
WITNESS IS, AND WHETHER THAT
WITNESS IS AVAILABLE AT THE
TIME OF TRIAL RATHER THAN
HAVING ALL OF THOSE CASES GO TO
AN EVIDENTIARY HEARING JUST ON
THE BASIS OF THAT PLEA DEAL.
WOULDN'T THAT --
>> IT WOULD BE PREFERABLE, YOUR
HONOR AND DEFENDANTS DO HAVE
OPPORTUNITY, A WHOLE TWO YEARS
AND ARE ABLE TO AMEND THE CLAIM
AT ANY TIME BEFORE THE TRIAL
COURT RULES AND IF THERE IS NO
RULING ON THE MERITS THEY HAVE
THE RIGHT TO AMEND THE CLAIM
WITHIN THE TWO-YEAR PERIOD AND
THERE ARE LOTS OF OPPORTUNITIES
DEFENDANTS HAVE TO GET THAT ARE
CLAIMS RIGHT.
AND TRIAL COURTS --
>> YOU CONCEDED THAT AND I
AGREE WITH YOU, WHY SHOULDN'T
THEY BE GIVEN THE TWO PERIODS
OF -- ABOUT TO EXPIRE, WHY
SHOULDN'T THEY BE GIVEN 30 DAYS
TO AMEND?
WHY IS 30 -- DOES 30 DAYS MAKE
THAT BIG OF A DIFFERENCE IN THE
CONTEXT OF WHAT WE ARE DEALING
WITH HERE.
THAT WHAT IS WE SAID IN BRYANT,
GIVE THEM 30 DAYS TO AMEND.
>> WELL, THAT WOULD BE FINE,
YOUR HONOR, IF IT WAS A
DEFICIENCY --
>> READ THAT AS TO, IF YOU ARE
WILLING WITHIN THE TWO-YEAR
PERIOD WE DON'T LIMIT THE
TECHNICAL DEFICIENCY.
>> CORRECT, YOUR HONOR.
>> FILING IT ON DAY 364 OR
TIMES TWO, WHATEVER THAT EQUALS,
WHY NOT GIVE ANOTHER 30 DAYS.
>> WHAT IT WILL RESULT IN IS
PERMITTING MOTIONS, IF YOU LET
ANYTHING IN, YOU ARE GOING BACK
TO THE SHELL MOTIONS AND
LETTING THEM FILE AT THE LAST
MINUTE, A CLAIM SAYING MY
ATTORNEY WAS INEFFECTIVE AND
YOU WILL GIVE THEM 30 DAYS TO
TRY AND GET IT RIGHT AND GET IT
RIGHT AGAIN.
>> 3 -- PROVIDED THE ORIGINAL
MOTION WAS FILED IN GOOD FAITH
OR SOMETHING LIKE THAT, SO ONE
THAT TAKE CARE OF IT IF YOU
INCLUDED THAT INTO YOUR HONOR,
I THINK THAT IS WHAT THIS IS
ABOUT WHETHER A CLAIM IN GOOD
FAITH AND I THINK TRIAL COURTS
SEE THESE CLAIMS ALL THE TIME
AND THEY ARE -- THE BEST
OPPORTUNITIES TO LOOK AT THIS
CLAIM AND LOOK AT THE LAUNDRY
LIST, IN THIS CASE AND THIS LNY
RECORD AND THE PERFORMANCE OF
THE DEFENSE ATTORNEY AT TRIAL
AND SAY THIS IS NOT IN THE
BALLPARK.
>> WAS THERE A HEARING IN THIS
CASE.
>> NO, URINE.
>> AND WHAT HAPPENS IN -- NO,
YOUR HONOR.
>> WHAT HAPPENS IN THE -- WE
COME FROM THE CIVIL ARENA,
THESE GET FILED THERAPY JUDGE
MAY OR MAY NOT UNDER THE RULE
ORDER A RESPONSE, YOU SAY THE
JUDGE HERE ORDERED A RON, IS
THAT CORRECT.
>> YES, YOUR HONOR.
>> AND GETS DENIED -- NOBODY
CALLS IT UP FOR A HEARING.
AND THERE WASN'T A HUFF HEARING
LIKE THERE IS IN A DEATH
PENALTY HEARING.
>> THERE WAS NOT, YOUR HONOR.
>> AND I GUESS THE PROBLEM I
HAVE IS WE HAVE A SITUATION,
WHAT JUSTICE WELLS IS POINTING
OUT, WE SEE VARIATION OF THESE
THINGS AND THIS IS THE IDEA,
WELL, OUR INSTINCT WOULD BE WHY
WASN'T THERE A HEARING AND FIND
OUT FROM MR. ROWING GO'S
PREDECESSOR, YOU KNOW --
MR. ROWING GO'S PREDECESSOR AND
RATHER THAN SAYING WE WILL GO
THROUGH -- ASKING US OR THE
TRIAL JUDGE TO GO THROUGH A
RECORD TO FIND OUTFIT IS
REFUTED.
ISN'T IT -- DO YOU SEE THAT AS
BEING INEFFICIENT TO HAVE TO
LOOK AT THE RECORD TO DECIDE AS
OPPOSED TO SAYING, LET SOMEONE
AMEND AT LEAST ONCE, ONE TIME.
>> [INAUDIBLE] IN THIS CASE,
THE TRIAL JUDGE WENT TO THE
EFFORT OF GOING THROUGH THE
WHOLE RECORD AND PROVIDING A
DETAILED ORDER FOR WHY HE WAS
REJECTING THE CLAIMS, BASED ON
WHAT HE SAW IN THE RECORD.
>> A PROPOSED ORDER FROM THE
STATE OR THE JUDGE'S OWN --
>> JUDGE'S OWN ORDER.
>> THERE ARE KNOW FACTS IN THE
ORDER, IT'S CON SLEWSRY AND I
CAN'T TELL -- CON CLUESRY AND I
CAN'T TELL, IS THERE SOMETHING
HERE OR ISN'T --.
>> THERE IS NOT, YOUR HONOR.
THE MERE -- THE FACTS OF CASE,
INVOLVED -- IN THE TRANSCRIPT,
INVOLVED A PERSON WHO WAS SEEN
BY POLICE, ONE POLICE OFFICER
AND ONE VOLUNTEER ON THE PART
OF WEST PALM BEACH AIRPORT
PROPERTY, WAS TOLD BY THE
POLICE TO STOP, HE FLED, THE
POLICE CHASED HIM --
>> BUT BEYOND THE FACTS OF THE
CASE, WHAT WE ARE STRUGGLING
WITH HERE IS, HOW DO YOU DEAL
WITH THESE CASES WITHOUT HAVING
TO DEAL WITH THE -- WHETHER A
TRIAL JUDGE COULD SUBJECTIVELY
SAY THIS WAS A GOOD-FAITH
EFFORT, THIS WAS NOT, THIS WAS
TECHNICAL, THIS WAS NOT, AND
ALL OF THOSE KINDS OF -- HOW
CAN WE GET TO A RULE THAT IS
FAIR TO ALL OF THE PARTIES,
WITHOUT HAVING TO WORRY ABOUT
ALL OF THESE OBJECTIVE FACTORS.
>> WELL, BECAUSE, YOUR HONOR --
WHY ISN'T ALLOWING ONE
AMENDMENT FOR 30 DAYS.
>> YOUR HONOR IN SOME CASES IT
IS CLEAR.
SOME CASES, LIKE THAT, IT IS
CLEAR, WHEN THERE ARE NO FACTS
ALLEGED, EITHER TO DEFICIENT
PERFORMANCE OR PREJUDICE, THAT
IS NOT A CLAIM MAND GOOD FAITH
BLANK INTO WHAT DO YOU DO IN A
SITUATION -- [INAUDIBLE] BEFORE
THE TWO YEARS IS OVER WITH, AND
THE JUDGE DOESN'T RULE UNTIL
AFTER THE TWO YEARS HAS PASSED
AND RULES THAT --
IT IS IN SUFFICIENT, THE
ABILITY -- TO AMEND IS NOT --
>> RIGHT, YOUR HONOR, IF THE
TWO-YEAR PERIOD HAD EXPIRED IT
WOULD BE A SITUATION IN WHICH A
COURT NEEDS TO GRANT LEAVE TO
AMEND BECAUSE IT WOULDN'T
OTHERWISE HAVE THE LEAVE TO
AMEND, BECAUSE THE TWO-YEAR
PERIOD HAS EXPIRED.
IF THE TWO-YEAR PERIOD HADN'T
EXPIRED, WASN'T CLOSE TO
EXPIRING.
>> DO YOU SEE ANY DIFFERENCE ON
THE LAW THAT APPLIES TO THE
SITUATION WHERE THE INABILITY
TO AMEND IS A RESULT OF THE
TRIAL COURT NOT MAKING A TIMELY
RULING ON THE MOTION?
>> WE HAVE HAD SOME OF THESE
MOTIONS THAT SIT FOR MONTHS, IF
NOT A YEAR OR MORE.
BEFORE I TRIAL JUDGE RULES ON
THEM.
>> SURE, YOUR HONOR.
AND TALKING ABOUT WHETHER A
TRIAL COURT SHOULD GRANT LEAVE
TO AMEND, WE ARE TALKING ABOUT,
HAS THE TWO-YEAR PERIOD ALREADY
EXPIRED AND NOW, IS THIS SUCH
AN ERROR, OR SUCH A DEFICIENCY
IN THE PLEADING, WHERE LEAVE TO
AMEND SHOULD BE GRANTED OR NOT.
AND WHERE THE TRIAL COURTS
LOOKED IT AND DETERMINED HE IS
NOT IN THE BALLPARK, HE SHOULD
NOT BE GRANTED LEAVE AND --
>> I'M NOT SURE YOU REALLY
RESPONDED TO HIS CONCERN ABOUT
THESE MOTIONS AREN'T EVEN RULED
UPON UNTIL AFTER THE TWO YEARS
HAVE EXPIRED.
>> YES.
-- THE FIRST YEAR, A MOTION IS
FILED AND MAY NOT HAVE ALL OF
THE REQUIREMENT THAT IT NEEDS.
THE DRIL JUDGE, THE DEFENDANT
-- TRIAL JUDGE, THE DEFENDANT
IS SITTING THERE WAITING FOR A
TRIAL JUDGE TO MAKE A RULING
AND THE TRIAL JUDGE DID NOT
MAKE A RULING UNTIL AFTER THE
TWO YEARS HAD PASSED, SO THE
DEFENDANT IS NOT ABLE TO AMEND,
NOT BECAUSE OF THE DEFENDANT
NOT AMENDING TIMELY BUT BECAUSE
HE OR SHE IS NOT ON NOTICE OF
THE NEED TO AMEND.
>> I SEE THE POINT YOU ARE
MAKING, YOUR HONOR, AND THE
DISTINCTION THERE IS JUST A
FUNCTION OF THE RULE.
THE RULE 3.850-F PROVIDES THE
COURT TO DISMISS IT AS
EXCESSIVE IF IT HAS BEEN
ADDRESSED ON THE MERITS BUT HE
ONLY HAS -- ONLY WITHIN THE
TWO-YEAR PERIOD AND IF WE TALK
ABOUT WHETHER A COURT CAN DENY
IT AS SUCCESSIVE IT WOULD STIBL
UNTIMELY BEYOND THE TIME PERIOD
--
>> EVEN IF THE YEAR PASSED
SIMPLY BECAUSE THE JUDGE SAT ON
THE FILE, NOT MAKING A RULING.
>> YES, YOUR HONOR AND THAT IS
A FUNCTION OF THE RULE, WHEN A
DEFENDANT MAKES A CLAIM, THEY
CAN MAKE IT ON THE FIRST DAY OF
THE TWO-YEAR PERIOD, OR THEY
CAN WAIT UNTIL THE END.
AND THAT IS THEIR CHOICE TO
HAVE A TWO-YEAR PERIOD TO FILE
AND TO GET THE CLAIM RIGHT AND
FOR PEOPLE WHO WAIT UNTIL THE
END, IF THERE IS SOMETHING TO
CORRECT ON IT, IT WILL BE
UNTIMELY AFTER THAT.
>> WITH OUR ASSISTANCE YOU HAVE
UTILIZED ALL YOUR TIME TIME.
THANK YOU VERY MUCH.
>> THANK YOU, YOUR HONOR.
>> SHORT REBUT.
>> YES.
>> WHAT I THINK THE COURT IS
LOOKING FOR HERE IS SOMETHING
THAT IS BOTH FAIR AND
EFFICIENT.
AND FAIR AND EFFICIENT WOULD BE
LEAVE TO AMEND THE 30 DAYS IN
BRYANT OR PERHAPS LONGER,
DEPENDING UPON THE SITUATION IN
THE CASE AND BRYANT TALKS ABOUT
THE POSSIBILITY THAT THERE MAY
BE A NEED --
>> JUST TO CLARIFY, THE
ARGUMENT YOU ARE MAKING IS
WHERE THE COURT FINDS THAT THE
INITIAL MOTION IS
INSUFFICIENTLY PLED IT WOULD
NOT APPLY, LET'S SAY, AFTER AN
EVIDENTIARY HEARING THAT A
COURT SHOULD ALLOW A DEFENDANT
TO REPLEA IT AT THAT POINT.
>> THAT'S CORRECT, JUSTICE
CANTERO.
>> CAN YOU DO THAT IN THE CASE
OF -- EVEN THE CONCLUSORY SHOW
MOTION.
>> I WOULD.
I THINK THAT THAT IS BOTH FAIR
AND EFFICIENT --
>> YOU AREN'T REALLY MAKING --
WE AREN'T REALLY MAKING THIS UP
AS WE GO ALONG, THE CURRENT
RULE SAYS NOTHING EVEN ABOUT
AMENDING AND THAT -- I THINK
THE PROBLEM IS AND YOUR CLIENT
THOUGHT GASKIN CONTROLLED, BUT
IT DOES SEEM, FRANKLY, AFTER
THE RESPONSES FILED BY THE
STATE, AS REPRESENTED THEY THE
LAWYER AT THAT TIME, THAT THEY
-- [INAUDIBLE] IN THIS CASE.
>> ONE WOULD HOPE SO, IN FACT
THAT KIND OF RAISES THE SPECTER
OF INEFFECTIVE COUNSEL IN THE
3.850 PETITION BUT THAT IS A
DIFFERENT --
>> WE AREN'T GOING THERE.
>> I KNOW, WE ARE NOT GOING
THERE.
>> I CAN SEE IN THE BACK GOING
-- NO!
NO!
>> WITH THE OPINION IT IS
PRESENTED SQUARELY TO THIS
COURT AND DOES NELSON, DOES
BRYANT REQUIRE LEAVE TO AMEND
AND IN FACT THE 4th DCA HAD
THAT STANDARD UNDER FRASER AND
RECEDED FROM FRASER AND UNDID
FRASER.
BUT, FAIR AND EFFICIENT, I
THINK, IS THE TEST.
AND AMENDMENT WOULD MEET THE
FAIR ANDEE MICHIGAN TEST.
>> THANK YOU VERY MUCH.
SNOW COURT WILL STAND IN
RECESS.
>> PLEASE RISE.,