Lively v. State, 264 So. 3d 367 (2019)

Feb. 15, 2019 · District Court of Appeal of Florida, Fifth District · Case No. 5D18-2114
264 So. 3d 367

Douglas A. LIVELY, Jr., Appellant,
v.
STATE of Florida, Appellee.

Case No. 5D18-2114

District Court of Appeal of Florida, Fifth District.

Opinion filed February 15, 2019

Douglas A. Lively, Jr., Malone, pro se.

Ashley B. Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Douglas Lively appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds One, Two, Three, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, and Thirteen. However, because Lively should have been given the opportunity to amend Ground Four1 to state a facially sufficient claim, we reverse the summary denial of that claim and remand with instructions that he be given the opportunity to do so. See Spera v. State, 971 So.2d 754 (Fla. 2007) ; see also McGill v. State, 157 So.3d 433, 434 (Fla. 4th DCA 2015) (noting earlier motions denied as too long, and interpreting Mancino v. State, 10 So.3d 1203, 1204 (Fla. 4th DCA 2009), as drawing distinction between rejections for form and rejections *368for insufficiency). Additionally, because the trial court failed to consider Grounds Fourteen and Fifteen, we remand for consideration of those claims as well. See Purse v. State, 185 So.3d 627 (Fla. 5th DCA 2016) (reversing and remanding where trial court failed to address claim raised in rule 3.850 motion); Hatcher v. State, 114 So.3d 1019 (Fla. 5th DCA 2012) ; Bridges v. State, 81 So.3d 616, 618 (Fla. 5th DCA 2012).

AFFIRMED in part, REVERSED in part, and REMANDED.

EVANDER, C.J., BERGER and HARRIS, JJ., concur.