DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JUSTIN T. FRIEND,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D20-2018

September 3, 2021

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit 

Court for Pinellas County; Joseph A. Bulone, Judge.

Justin T. Friend, pro se.

SLEET, Judge.

Justin Friend challenges the postconviction court's order 

summarily denying his Florida Rule of Criminal Procedure 3.850 

motion in which he alleged several claims of ineffective assistance of 

counsel in conjunction with his convictions after jury trial for 
2

aggravated child abuse and neglect of a child. We find error only in 

the denial of ground four of Friend's motion, in which he alleged 

that counsel was ineffective for failing to object to a sleeping juror 

after Friend informed counsel of the issue. 

In addressing this claim, the postconviction court 

acknowledged that "[t]ypically, a claim of ineffective assistance of 

counsel for failing to object to a sleeping juror should not be 

summarily denied," Collins v. State, 200 So. 3d 163, 166 (Fla. 5th 

DCA 2016), but concluded that Friend's allegations of Strickland1

prejudice were too speculative. Specifically, the court stated that 

Friend's "allegations rest on pure speculation—that it was a 

'possibility' that the juror fell asleep during an unspecified 'critical 

phase/point' in the trial." The court concluded that "[s]peculation 

is insufficient to form a basis for postconviction relief" and 

summarily denied the claim.

We agree that this allegation is too speculative to warrant 

relief. See Connor v. State, 979 So. 2d 852, 863 (Fla. 2007) ("Relief 

on ineffective assistance of counsel claims must be based on more 

1 Strickland v. Washington, 466 U.S. 668 (1984).
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than speculation and conjecture."). However, instead of denying the 

claim on this basis, the postconviction court should have afforded 

Friend the opportunity to amend the claim. See Fla. R. Crim. P. 

3.850(f)(3) ("If the motion sufficiently states [one] or more claims for 

relief and it also attempts but fails to state additional claims, and 

the motion is timely filed under this rule, the court shall enter a 

nonappealable order granting the defendant [sixty] days to amend 

the motion to sufficiently state additional claims for relief."). 

[W]hen a defendant's initial rule 3.850 motion for 

postconviction relief is determined to be legally 

insufficient for 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. . . . [T]he proper 

procedure is to strike the motion with leave to amend 

within a reasonable period.

Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). Such amendment 

is appropriate where "claims . . . fail to contain required 

allegations." Id. at 762.

Accordingly, we reverse the summary denial of ground four of 

Friend's postconviction motion and remand with instructions that 

the postconviction court allow Friend sixty days to amend that 

ground. We affirm in all other respects.
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Affirmed in part, reversed in part, and remanded.

KHOUZAM and LABRIT, JJ., Concur.

Opinion subject to revision prior to official publication.