       Third District Court of Appeal
                                State of Florida

                            Opinion filed April 27, 2016.
          Not final until disposition of timely filed motion for rehearing.



                                No. 3D16-162
                         Lower Tribunal No. 08-44050A



                                 Enel Charles,
                                     Appellant,

                                           vs.

                             The State of Florida,
                                        Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.

      Enel Charles, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.


Before EMAS, LOGUE and SCALES, JJ.

      EMAS, J.
      Enel Charles appeals the trial court’s summary denial of his motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We

affirm that portion of the trial court’s order summarily denying claims One, Three,

Four, Five and Six of Charles’ motion for postconviction relief. However, and for

the reasons that follow, we reverse the trial court’s order insofar as it summarily

denied relief on claim Two, which alleged that trial counsel failed to investigate

and present alibi witnesses at Charles’ trial.

      The trial court’s summary denial of claim Two was based upon the facial

insufficiency of the claim. The trial court stated in its order:

      Claim II is denied as legally insufficient because it is merely
      conclusory. See Armstrong v. State, 862 So. 2d 705, 712 (Fla. 2003)
      (finding that a mere conclusory allegation of prejudice was legally
      insufficient). The Florida Supreme Court has ruled that in a Rule
      3.850 alibi claim the defendant has at a minimum to “specifically
      identify the alibi witnesses, state the substance of their exculpatory
      evidence and averred that they were known to counsel.” Jacobs v.
      State, 880 So. 2d 548, 553 (Fla. 2004). Here the defendant does not
      meet any of the Jacobs requirements.

      Having determined that the claim was facially insufficient, the trial court

erroneously denied the claim on its merits. To the extent that a postconviction

claim is conclusory or otherwise facially insufficient, the trial court should not

deny the claim on its merits, but instead should enter a nonfinal order that provides

the defendant the opportunity to amend the motion to state a legally sufficient

claim for relief. See Fla. R. Crim. P. 3.850(f)(2) (providing that “[i]f the motion is
insufficient on its face, and the motion is timely filed under this rule, the court shall

enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the

motion. If the amended motion is still insufficient or if the defendant fails to file

an amended motion within the time allowed for such amendment, 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 (Fla. 2007). Charles’ motion failed to

sufficiently identify the two alibi witnesses, describing them only by their first

names. This was facially insufficient and the court order, instead of denying the

claim on the merits, should have issued an order that provided Charles an

opportunity to amend this claim.

      Second, and relatedly, the trial court found not only that the motion failed to

specifically identify the alibi witnesses, but that the motion also failed to satisfy the

other two requirements of Jacobs (i.e., that the motion state the substance of the

witnesses’ exculpatory evidence and aver that these witnesses were known to

counsel). Contrary to the trial court’s findings, however, a review of claim Two

reveals that it sets forth in considerable detail (covering four typewritten pages) the

precise substance of what these two alibi witnesses would have testified to had

they been called as witnesses at trial, and how that testimony would have affected

the outcome of the trial.1 Further, the motion specifically alleges that defendant

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advised his counsel about the existence of these two alibi witnesses and advised

counsel how he could contact them. Defendant alleges he requested counsel to

investigate and locate these witnesses so they could testify at trial to establish that

defendant was with them (and was not at the scene of the crimes) when the crimes

were committed. Given that this was a summary denial, we must accept as true the

well-pleaded allegations of the motion to the extent they are not conclusively

refuted by the record. Fla. R. App. P. 9.141(b)(2)(D); Occhicone v. State, 768 So.

2d 1037 (Fla. 2000).

      We therefore affirm the trial court’s summary denial of claims One, Three,

Four, Five and Six, but reverse and remand on claim Two, with directions that the

trial court enter an order granting defendant sixty days to amend claim Two to state

a facially sufficient claim, and for further proceedings as may be appropriate.




1 Because the order of denial was based on the facial insufficiency of claim Two,
the trial court did not determine whether, accepting the allegations of the as true,
defendant satisfied the two-pronged test for ineffective assistance of counsel as
established in Strickland v. Washington, 466 U.S. 668 (1984).
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