## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
Case No. 5 D 2 3

- 1888 LT Case No. 2020

- CF

- 6115

_____________________________
D AMIEN O. C ALDWELL , Appellant,

v.

S TATE OF F LORIDA , Appellee.

_____________________________

3.850 A ppeal from the Circuit Court for Duval County

. R. Anthony Salem , Judge

.

Damien Caldwell

, Lake City

, pr o se

. No Appearance for Appellee.

October 20, 2023

P ER C URIAM

.

Damien O. Caldwell appeals the summary denial of his Florida R ule of Criminal Procedure 3.850 amended motion for postconviction relief

, in which he raised two grounds. We affirm the postconviction court’s denial of ground one of the amended motion on the merits wit hout further discussion. For the following reasons, we reverse the denial of ground two and remand for further consideration.2 Caldwell is presently serving a prison sentence in this case following his guilty plea to one count o f armed robbery

, committed when he was sixteen years old. Caldwell did not appeal his judgment and sentence, but he did timely file the subject rule 3.850 motion for postconviction relief

, initially raising a single ground in his motion . The court dismissed Caldwell’s m otion under rule 3.850(f)(2) for being facially insufficient but did so without prejudice to Caldwell filing an amended motion within sixty days of the order.

Caldwell timely filed his amended motion. In the motion, Caldwell raised a second ground for re lief, not previously made, in which he essentially attempt ed to assert that his counsel was ineffective for not having him evaluated for competency to proceed or understand the process. In the order now on review, t h e postconviction court denied this grou nd as “unauthorized

, ” explaining that its prior nonfinal order dismissing Caldwell’s original motion provided that no new claims could be added to the motion without leave of court.

We hold that t he postconviction court erred in doing so. W hen, as here, the two

- year filing requirement under rule 3.850 had not yet expired and the court had not issued a final order on the rule 3.850 motion , it must consider any additional claims raised in the amende d motion

. See Gaskin v. State , 737 So. 2d 509, 517

– 18 (Fla. 1999) ( holding that the trial court erred in denying the defendant’s rule 3.850 amended motion for postconviction relief on the ground that the new claims raised in the amended motion were proced urally barred, when the motion was filed within the time limit under the rule and before the trial court had ruled on the original motion), receded from in part on other grounds

, Nelson v. State

, 875 So. 2d 579 , 582

– 83 (Fla. 2004); Padro

- Guerrero v. State

, 123 So. 3d 670, 671 (Fla. 5 th DCA 2013) (“As long as the two

- year limitat ion period [of rule 3.850] has not expired, the trial court must consider any additional claims raised prior to the court’s final order on a rule 3.850 motion .”).

In a footnote contained in its denial order, the court also separately observed that ground two of Caldwell’s amended motion “lack[ed] specific supporting facts,” but that since Caldwell had3 alre a dy been given leave to amend his original motion, he was “not entitled to another.”

When an amended motion filed under rule 3.850 remains facially insufficient, as ground two was here, the postconviction court, in its discretion, may either permit the defen dant an additional opportunity to amend the motion or enter a final order summarily denying the motion with prejudice

. Fla. R. Crim. P. 3.850(f)(2); see also Spera v. State , 971 So. 2d 754, 761 (Fla. 2007) (holding that a trial court’s striking of further amendments that are insufficiently pled “ is subject to an abuse of discretion standard that depends on the circumstances of each case”). As it is unclear from its order and the circumstances whether the postconviction
court fully understood that it posse ssed the discretion to allow Caldwell to amend his second ground for relief, we reverse that aspect of the order and remand for further consideration.

A FFIRMED , in part ; R EVERSED , in part ; and R EMANDED

.

H ARRIS and M AC I VER , JJ., concur

. L AMBERT , J., concurs specially, with opinion.4 L AMBERT , J., concur ring specially



### .

I concur with the majority’s summary denial of ground one and its reversal on ground two. Under the circumstances of this

case

— specifically, (1) Caldwell being sixteen years old when he committed the crim e , (2) Caldwell being seventeen years old when he pleaded guilty, (3) ground tw o raising the issue of Caldwell’s competency when he pled

, (4) ground two having not previously been amended, and ( 5 ) the expiration of the two

- year filing requirement under rule 3.850 since Caldwell filed his amended motion

— I believe that it was an abuse of discretion for the postconviction court to not have allowed Caldwell an opportunity to amend his deficiently

- pled ground two claim , assuming that he can do so in good faith

. That said, the majority opinion provides the postconviction court with the opportunity to do exactly that.