        Third District Court of Appeal
                                 State of Florida
                          Opinion filed October 13, 2016.

 THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY FURTHER
   MOTION FOR REHEARING AND/OR REHEARING EN BANC. ANY
 PREVIOUSLY-FILED MOTION FOR REHEARING EN BANC IS DEEMED
                             MOOT.
                        ________________

                                 No. 3D16-972
                          Lower Tribunal No. 10-27158 C
                               ________________

                                 Gerson Juarez,
                                      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, Teresa Mary Pooler, Judge.

      Gerson Juarez, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.


Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.

           ON MOTION FOR REHEARING and WRITTEN OPINION

SUAREZ, C.J.

      We grant Gerson Juarez’s motion for rehearing of the opinion issued July

13, 2016, and for written opinion. We withdraw our prior opinion and substitute

the following opinion in its stead.
      On appeal from a summary denial of a petition for post-conviction relief,

Juarez argues that he was entitled to an opportunity to amend his 3.850 petition

after the trial court denied it for legal insufficiency. We agree. 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 non-final, non-

appealable 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”).

The trial court summarily denied Juarez’s 3.850 petition without any explanation

of which of the several issues raised were insufficient and for what reasons, and

failed to attach any documents that would conclusively show legal insufficiency or

no entitlement to relief. Juarez moved on rehearing to be allowed to amend

pursuant to rule 3.850(f)(2), but the trial court summarily denied that as well.

      To the extent the denial of the motion was based upon the legal insufficiency

of the motion, the trial court failed to follow the procedure outlined in Spera v.

State, 971 So. 2d 754 (Fla. 2007) when determining that an initial motion for post-

conviction relief is legally insufficient. To the extent the denial of the motion was

based upon the record, the court failed to attach to its order any portion of the files


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or record that conclusively shows appellant was not entitled to relief. See Fla. R.

Crim. P. 3.850(d). The trial court erred by denying the defendant sixty days to

amend pursuant to the rule.

      We therefore reverse and remand with directions that the trial court either:

1) enter an amended order that attaches those portions of the files and record that

conclusively establish that appellant is entitled to no relief; or 2) permit appellant

an opportunity to amend his motion to state legally sufficient claims, and for

proceedings thereafter consistent with this opinion. Spera v. State, 971 So. 2d 754

(Fla. 2007); Belanger v. State, 146 So. 3d 136 (Fla. 3d DCA 2014); Nottage v.

State, 61 So. 3d 1231, 1232-33 (Fla. 3d DCA 2011).




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