Dontavion J. King v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DONTAVION JERMAL KING,
Appellant,
v. Case No. 5D17-2072
STATE OF FLORIDA,
Appellee.
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Opinion filed November 3, 2017
3.850 Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.
Dontavion Jermal King, Indiantown, pro se.
No Appearance for Appellee.
PER CURIAM.
Dontavion King appeals the summary denial of his Florida Rule of Criminal
Procedure 3.850 motion for postconviction relief. King raised seven grounds in his
motion. We affirm, without further discussion, the postconviction court’s summary denial
of grounds one through six. As to ground seven of King’s motion, because it is
insufficiently pled, we reverse that part of the order and remand to allow King an
opportunity to amend that claim.
In ground seven, King alleged that his trial counsel was constitutionally ineffective
for failing to move for a mistrial based upon the prosecutor’s repeated improper
comments, elicitation of hearsay testimony, violation of a previously granted motion in
limine, and misstatements of both the law and the “facts” of the case. In summarily
denying this ground, the court held that allegations of prosecutorial misconduct are issues
that should be raised on direct appeal and are inappropriate for rule 3.850 relief. The
court also found that King was procedurally barred from attempting to argue that the
cumulative effect of multiple errors at trial entitled him to postconviction relief, concluding
that these are issues also for direct appeal.
The lower court is correct that claims of prosecutorial misconduct and trial court
error are required to be raised on direct appeal and are not cognizable in a rule 3.850
motion. Henry v. State, 933 So. 2d 28, 29 (Fla. 2d DCA 2006) (citing Brown v. State, 894
So. 2d 137, 145 (Fla. 2004)). However, King’s claim in ground seven was based on the
alleged ineffectiveness of his counsel in not objecting to or moving for mistrial based upon
the prosecutor’s alleged repeated acts of misconduct during the trial. This type of claim
is cognizable in a rule 3.850 motion. See Stites v. State, 841 So. 2d 681, 681–82 (Fla.
5th DCA 2003). Nevertheless, King’s allegations of ineffective assistance of counsel in
this ground are vague and conclusory. Under the circumstances, “[a] defendant who has
filed a legally insufficient rule 3.850 motion must be given at least one opportunity to
correct the deficiency, unless it is apparent that the defect cannot be corrected.” Lamb v.
State, 202 So. 3d 118, 120 (Fla. 5th DCA 2016) (citing Luckey v. State, 979 So. 2d 353,
355 (Fla. 5th DCA 2008); Fla. R. Crim. P. 3.850(f)).
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Because our record does not show that King has previously sought or been given
leave to amend his rule 3.850 motion, and since the pleading deficiency in ground seven
may be correctable, he should be given the chance to do so. Thus, we reverse the
summary denial and remand with directions that the postconviction court provide King
with sixty days to amend ground seven of his motion, if, in good faith, he can amend it.
AFFIRMED in part; REVERSED in part; and REMANDED.
SAWAYA, LAMBERT, and EISNAUGLE, JJ., concur.
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