Emmanuel J. Breadon v. State
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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 EMMANUEL JOEL BREADON, Appellant, v. Case No. 5D16-931 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 22, 2016 3.850 Appeal from the Circuit Court for Marion County, Jonathan D. Ohlman, Judge. Patrick Michael Megaro, of Appeals Law Group, P.A., Orlando, for Appellant. No Appearance for Appellee. PER CURIAM. Emmanuel Breadon appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm, except as to the claim that trial counsel was ineffective by failing to explore and/or raise an insanity defense. The trial court correctly found that Breadon had failed to allege that he was, in fact, insane at the time of the offense. See Luckey v. State, 979 So. 2d 353, 354 (Fla. 5th DCA 2008). However, rather than summarily denying the claim because of its facial insufficiency, the trial court should have afforded Breadon the opportunity to amend. Id. at 355; see also Spera v. State, 971 So. 2d 754 (Fla. 2007). AFFIRMED, in part; REVERSED, in part; and REMANDED. TORPY, EVANDER and WALLIS, JJ., concur. 2
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