The First District Court of Appeal affirmed the denial of a postconviction motion in Charles v. State, No. 1D2026-0332, decided November 4, 2026, but one judge used the occasion to say the precedent behind the ruling is wrong. The appeal came from Bay County, where Circuit Judge Timothy Allen Register presided. The per curiam opinion affirms in a single line, citing Daise v. State (Fla. 1st DCA 2024). Judges Nordby and Long concurred. Judge Winokur concurred with an opinion. Shakeel Charles represented himself.
The concurrence
Judge Winokur wrote that applying Daise leads to affirmance of the order below. He then wrote that, as he indicated in Owens v. State, 401 So. 3d 585 (Fla. 1st DCA 2025) (Winokur, J., concurring), Daise “interprets the current Florida Rules of Criminal Procedure 3.850(g) and (h)(2) in a manner that unjustifiably cuts off a postconviction movant’s right to file a timely amended rule 3.850 motion.”
His description of how the rules should work is this. When a postconviction movant has been given sixty days to amend a legally insufficient motion under rules 3.850(g) and (h)(2) and does not file an amended motion in that time, the trial court “is free to enter a final, appealable order summarily denying the motion with prejudice.” Any amended motion filed after that point would have to meet the standards of rule 3.850(j) for successive motions. But if the court has not yet entered that final order when the movant files an amended motion, “the amended motion should be considered if it is otherwise timely.”
In his view Daise, and the 2015 Fourth District decision it rests on, Ivory v. State, “prematurely cuts off the two-year period in which a defendant may file a rule 3.850 motion.” He concluded: “Rule 3.850 should be amended to clarify this well-settled rule.”
What this does and does not mean
The court’s holding is only the affirmance under Daise. A concurring opinion is one judge’s view and is not binding. The opinion does not describe the order Mr. Charles appealed, so it does not say whether the amended-motion question arose in his case. As a concurrence, Judge Winokur’s reading does not change how the First District applies Daise. The case is cited as Daise v. State, 379 So. 3d 603 (Fla. 1st DCA 2024), as the per curiam gives it; the concurrence prints the volume as 370.
What the rule already says
Rule 3.850(h)(2), in the version effective October 1, 2026, provides that if an amended motion “is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court may permit the defendant an additional opportunity to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice.” So a judge already has discretion to allow another chance. Judge Winokur’s concern is narrower: whether a court should consider an otherwise timely amended motion filed before it has entered that final order.
The opinion is not final until disposition of any timely and authorized motion under Florida Rule of Appellate Procedure 9.330 or 9.331.