Cowan v. State

317 So.3d 1286 (Mem)

Robert Allan COWAN, Appellant,

v.STATE of Florida, Appellee.

No. 1D20-1764

District Court of Appeal of Florida, First District.

June 10, 2021

William Mallory Kent and Ryan Edward McFarland, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Steven Woods, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Appellant, Robert Allan Cowan, appeals the trial court's order summarily denying relief as to ten of his twelve claims of ineffective assistance of counsel made under Florida Rule of Criminal Procedure 3.850 and denying relief as to his two remaining ineffective assistance of counsel claims following an evidentiary hearing. The only claim that warrants discussion and reversal is Ground 1, wherein Appellant alleged that his trial counsel was ineffective in failing to preserve for appeal the trial court's ruling on the admissibility of child hearsay statements.^* In summarily denying relief as to Ground 1, the postconviction court correctly found that while Appellant alleged prejudice on appeal as a result of trial counsel's alleged deficiency, he did not allege prejudice during trial. See Martin-Godinez v. State , 290 So. 3d 144, 146 (Fla. 1st DCA 2020) (rejecting the argument that a defendant can demonstrate the required prejudice for an ineffective assistance claim by arguing that, had counsel objected, he would have secured relief on appeal and holding that a defendant can only secure relief or at least an evidentiary hearing by alleging facts showing that the result of the proceeding below would have been different but for counsel's deficient performance). The postconviction court should have provided Appellant with the opportunity to amend Ground 1 to allege the proper prejudice. See Spera v. State , 971 So. 2d 754, 755 (Fla. 2007) ("[W]e hold that in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected."); Martin-Godinez , 290 So. 3d at 147 (reversing and remanding for the appellant to be given the opportunity to amend his facially insufficient postconviction claim that alleged prejudice on appeal rather than during trial).

Accordingly, we reverse the order on appeal as to Ground 1 and remand with directions that the trial court provide Appellant the opportunity to amend his claim. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and...