Marcus Blackmon v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARCUS BLACKMON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D13-644, 4D13-645 and 4D13-646
[May 6, 2015]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No.
08008655CF10A.
Marcus Blackmon, Blountstown, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals three orders entered in post-conviction
proceedings, which have been consolidated. The orders: (1) summarily
denied the original post-conviction motion in part and set an evidentiary
hearing on remaining issues; (2) denied the grounds heard at the hearing;
and (3) summarily denied amended motions for post-conviction relief filed
before the second ruling on the original motion, and also denied relief
under Rule 3.853. We affirm in part and reverse in part.
The defendant was convicted of unlawful sexual activity with a minor.
We affirmed on direct appeal. Blackmon v. State, 32 So. 3d 148 (Fla. 4th
DCA 2010). The mandate issued in May 2010. In July of that year, the
defendant filed his original rule 3.850 motion, raising eighteen grounds for
ineffective assistance of trial counsel. In November 2010, he moved to
supplement the motion to expand ground five. In January 2011, he filed
another motion to supplement the motion to expand grounds three, nine,
and fifteen.
After receiving the State’s response, the trial court granted an
evidentiary hearing on certain grounds, summarily denying the rest.
Before the hearing, the defendant filed an amended motion raising
grounds nineteen through twenty-six. At the beginning of the hearing,
appointed counsel brought the amended motion to the court’s attention.
The court directed the State to respond to the new claims, stating it would
hold a further hearing if warranted.
A month after the hearing, the defendant filed a second amended rule
3.850 motion, raising yet another ground, number twenty-seven. The
defendant also filed a rule 3.853 motion. In July 2012, the court denied
the remaining grounds of the original motion.
In December 2012, the State filed its response to the defendant’s rule
3.853 motion, the amended rule 3.850 motion, and the second amended
rule 3.850 motion. With respect to the two amended rule 3.850 motions,
the State recommended summarily denying both as successive. The
defendant replied in January 2013. In a single January 15, 2013 order,
the trial court denied the remaining three motions based on the State’s
response. From these orders, the defendant appeals.
We find merit in only the fourth and final issue which the defendant
raises in the instant appeal: The trial court erred in summarily denying
his amended rule 3.850 motions as successive when they were filed within
the requisite two-year period and prior to the court’s final ruling on the
original motion. He accurately claims that his appointed counsel sought
to adopt the amended motion and the trial court authorized the
amendment. He argues, therefore, that the court should have considered
the amended motions on their merits. We agree.
The defendant relies on Ramirez v. State, 854 So. 2d 805, 806–07 (Fla.
2d DCA 2003), and Beard v. State, 827 So. 2d 1021, 1021–22 (Fla. 2d DCA
2002). We agree that these cases support the defendant’s position. In
both cases, the Second District found that the trial court erred in failing
to consider the merits of claims timely asserted in amended motions when
the amended motions had been filed before the trial court disposed of the
original motion.
Here, the defendant amended his motion once before the evidentiary
hearing on the pending claims from the original motion and again before
the trial court ruled on the original motion. In fact, the trial court agreed
to consider the first amended motion when its pendency was called to the
court’s attention at the evidentiary hearing. The court erred in summarily
2
denying the amended motions as successive.1 Ramirez, 854 So. 2d at 806–
07; Beard, 827 So. 2d at 1021–22.
We find no merit in the remaining issues raised.
Affirmed in part, reversed in part, and remanded.
GROSS and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 The current version of Rule 3.850 now requires a defendant to obtain leave to
file an amended motion, even if timely, if the trial court has disposed of the motion
or issued an order requiring a state response. Fla. R. Crim. P. 3.850(e). But, the
amendment adding that provision did not become effective until July 1, 2013. In
re Amendments to Fla. Rules of Criminal Procedure & Fla. Rules of Appellate
Procedure, 132 So. 3d 734, 748 (Fla. 2013).
3