       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 03, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1750
                     Lower Tribunal No. 2013-CF-21-A-K
                             ________________


                             Nicholas Belanger,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Monroe County, Mark H. Jones, Judge.

      Nicholas Belanger, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.


Before ROTHENBERG, LOGUE, and SCALES, JJ.

      ROTHENBERG, J.
      The defendant, Nicholas Belanger, appeals the denial of his Florida Rule of

Criminal Procedure 3.801 motion for additional jail credit. Based on our review of

the defendant’s motion, we agree with the trial court that the defendant’s motion

fails to include all of the information required by rule 3.801(c).1 However, because

this was the defendant’s first attempt to file such a motion, the trial court erred by

denying the defendant’s motion without giving the defendant leave to amend his

motion. Accordingly, we reverse the order under review to allow the defendant to

file a facially sufficient rule 3.801 motion within sixty days of the issuance of this

Court’s mandate.

      We briefly address the procedure that should be followed by trial courts

when a defendant files a timely but facially insufficient rule 3.801 motion that

disputes the amount of credit given for the time the defendant spent in the county
1 Rule 3.801(c) provides:

             (c) Contents of Motion. The motion shall be under oath and
      include:
             (1) a brief statement of the facts relied on in support of the
      motion;
             (2) the dates, location of incarceration and total time for credit
      already provided;
             (3) the dates, location of incarceration and total time for credit
      the defendant contends was not properly awarded;
             (4) whether any other criminal charges were pending at the time
      of the incarceration noted in subdivision (c)(3), and if so, the location,
      case number and resolution of the charges; and
             (5) whether the defendant waived any county jail credit at the
      time of sentencing, and if so, the number of days waived.




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jail prior to sentencing.      Rule 3.801(e) incorporates portions of rule 3.850,

including subsection (f). Rule 3.850(f)(2) provides:

              (f) Procedure; Evidentiary Hearing; Disposition. On filing
      of a motion under this rule, the clerk shall forward the motion and file
      to the court. Disposition of the motion shall be in accordance with the
      following procedures, which are intended to result in a single, final,
      appealable order that disposes of all claims raised in the motion.
      ....
              (2) Timely but Insufficient Motions. If 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.

(Emphasis added).

      Although the trial court concluded that the defendant’s timely-filed 3.801

motion was facially insufficient, it appears this was the defendant’s first attempt to

file a facially sufficient rule 3.801 motion. Thus, the trial court should not have

denied the motion and entered a final judgment advising the defendant that he had

the right to file an appeal within thirty days of its rendition. Instead, the trial court

should have entered “a nonfinal, nonappealable order allowing the defendant 60

days to amend the motion.” Fla. R. Crim. P. 3.850(f)(2); see also Spera v. State,

971 So. 2d 754, 761-62 (Fla. 2007) (holding that, “When a defendant’s initial rule

3.850 motion for postconviction relief is determined to be legally insufficient for



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failure to meet either the rule’s or other pleading requirements, the trial court

abuses its discretion when it fails to allow the defendant at least one opportunity to

amend the motion,” and limiting its ruling to motions deemed facially insufficient

to support relief).

       Reversed.




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