                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

RUSSELL ROY SMITH,                      NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D16-1127

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed August 2, 2016.

An appeal from an order of the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.

Russell Roy Smith, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      The appellant appeals the summary denial of his motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the
denial of ground two without further comment. For the reasons discussed below,

we reverse and remand the denial of ground one.

      In ground one, the appellant asserts that counsel was ineffective for failing to

introduce mitigating evidence in support of a request for a downward departure

sentence.   The appellant does not allege what evidence counsel should have

introduced or why it would have led to him receiving a downward departure.

However, the appellant is entitled to one opportunity to amend to state a facially

sufficient claim. See Spera v. State, 971 So. 2d 754 (Fla. 2007) (trial court must

give defendant one opportunity to amend facially deficient claims); Thacker v.

State, 990 So. 2d 1223 (Fla. 1st DCA 2008) (reversing denial of facially

insufficient claim that counsel was ineffective for failing to argue for a downward

departure for trial court to grant an opportunity to amend pursuant to Spera). Thus,

we affirm in part, and reverse and remand in part for the trial court to grant the

appellant 60 days to file a facially sufficient claim that counsel was ineffective for

failing to introduce evidence in support of a downward departure sentence, if the

appellant can do so in good faith.

      Affirmed in part, Reversed and Remanded in part with directions.

BILBREY and M.K. THOMAS, JJ., and BEVERLY, THOMAS M., ASSOCIATE
JUDGE, CONCUR.




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