text:
    Dedrick Demond COTTRELL v. STATE of Alabama.
    CR-04-2044.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Rehearing Denied Feb. 16, 2007.
    Certiorari Denied May 11, 2007 Alabama Supreme Court 1060817.

      R. Hays Webb, Tuscaloosa, for appellant.
    Troy King,' atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
   COBB, Judge.

The appellant, Dedrick Demond Cott-rell, pleaded guilty to possessing a firearm with an altered or removed serial number, a violation of § 13A-11-64, Ala.Code 1975. Cottrell was sentenced to one year and one day in jail; the court suspended the sentence and placed Cottrell on probation for two years. Before entering his guilty plea, Cottrell specifically reserved his right to appeal the circuit court’s ruling denying his motion to suppress the gun, which was recovered as a result of a traffic stop.

Cottrell argued in his motion to suppress that the traffic stop was illegal because the stop was made pursuant to an anonymous tip that was not corroborated or .verified by the police officer before he stopped Cottrell’s vehicle. He asserts that based on the United States Supreme Court’s decision in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the results of the illegal stop — the gun — should have been suppressed because the anonymous tip had no indicia of reliability — it was not corroborated.

The circuit court held a hearing on the motion to suppress. At the hearing, Officer Darren Beams of the Tuscaloosa Police Department testified that on March 8, 2003, he was driving his patrol car eastbound on Skyland Boulevard in Tuscaloosa when a driver flagged him down and told him that a blue Chevrolet Lumina automobile was “swerving all over the road.” The driver said that he saw all of the vehicle’s occupants, three young black males, drinking beer. Officer Beams saw the vehicle the driver was describing as he was speaking to the anonymous motorist, and he initiated a traffic stop. He said that he noticed a lot of “furtive movement” and that it took the vehicle a “little time” to stop. He said that when the three got out of the vehicle he could see half a case of beer stuck in a hole between the backseat and the opening to the trunk. Officer Beams testified that Cottrell was driving the vehicle and that he obtained his consent to search the car. When he opened the driver’s door, Officer Beams said, he saw the handle of a revolver sticking out from under the seat. He could see that the serial number of the gun had been altered. On cross-examination, Officer Beams said that he did not personally observe any illegal activity before the stop and that the sole basis for the stop was the complaint by the anonymous motorist.

The circuit court denied the motion to suppress. Cottrell then moved the court to reconsider its ruling. The circuit court likewise denied that motion. Cottrell then pleaded guilty to violating § 13A-11-64, Ala.Code 1975, and reserved his right to appeal the circuit court’s ruling denying his motion to suppress the gun.

This Court’s review of a ruling on a motion to suppress when the evidence presented is undisputed is de novo — we indulge no presumption of correctness in the circuit court’s findings. See State v. Hill, 690 So.2d 1201 (Ala.1996).

The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that an officer may stop and detain a citizen if he has a “reasonable suspicion” that a crime has been committed or that one is being committed. A totality-of-the-eircumstances approach is used when assessing the information relayed to the officer. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An anonymous tip may provide reasonable suspicion if the tip is reliable. See Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

More recently, in Florida v. J.L., the United States Supreme Court addressed whether an anonymous telephone tip that an individual was at a certain location and was carrying a gun was sufficient to stop the individual and conduct a search. The Supreme Court, holding that the anonymous telephone tip did not establish sufficient reliability to justify the stop, stated:

“In the instant case, the officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, 146-147 (1972), ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,’ Alabama v. White, 496 U.S. [325], at 329 [ (1990) ].
“The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.”

529 U.S. at 270-71, 120 S.Ct. 1375. Apparently, limiting its holding, the United States Supreme Court further stated:

“The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U.S. 1 (1984) (per curiam), and schools, see New Jersey v. T.L.O., 469 U.S. 325 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.
“... We speak in today’s decision only of cases in which the officer’s authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams [v. Williams, 407 U.S. 143 (1972),] and [Alabama v.] Whitef, 496 U.S. 325 (1990),] does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.”

529 U.S. at 273-74, 120 S.Ct. 1375. Also, Justice Kennedy, in a special concurrence joined by Chief Justice Rehnquist, noted that “there are many indicia of reliability respecting anonymous tips that we have yet to explore in our cases.” 529 U.S. at 274, 120 S.Ct. 1375. Justice Kennedy then said:

“An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. This too seems to be different from the tip in the present case. See United States v. Sierra-Hernandez, 581 F.2d 760 (C.A.9 1978).”

529 U.S. at 276, 120 S.Ct. 1375.

The United States Supreme Court’s decision in Florida v. J.L. is factually distinguishable from the facts presented in this case. First, in this case the informant did not anonymously telephone the police; instead he flagged down a police officer from his vehicle as the officer was passing in his patrol car. The informant’s identity was readily apparent by the license plate on his car, and the informant could have been held accountable for any misinformation he relayed to the police officer. We agree that “a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false.” United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991). “Information from a citizen who confronts an officer in person to advise that a designated individual present on the scene is committing a specific crime should be given serious attention and great weight by the officer.” United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.1978).

“Various federal and state courts have distinguished the government informant ... from the eyewitness, victim of a crime or a citizen who provides information of a crime.... The rationale of these holdings is that the concomitant danger of self-interest does not inure to a victim or witness to a crime as easily as it would to a government informant.”

United States v. Unger, 469 F.2d 1283, 1287 n. 4 (7th Cir.1972).

Justice Rehnquist, writing for the court in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), stated:

“Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.”

407 U.S. at 147, 92 S.Ct. 1921. Here, the informant was not “totally anonymous” as was the case in Florida v. J.L. This informant had a face-to-face encounter with the police officer. “By thus presenting himself to the agent and doing so while driving a car from which his identity might easily be traced, the informant was in a position to be held accountable for his intervention. The reliability of the information was thus increased.” United States v. Sierra-Hernandez, 581 F.2d at 763.

Second, unlike Florida v. J.L. the informant here told police that he had seen all three occupants of the car drinking beer and that the car had been “swerving all over the road” — a situation quite different from the situation presented to the court in Florida v. J.L.

Alabama has not had occasion to address the United States Supreme Court’s decision in Florida v. J.L. since its release in 2000. However, many other state and federal courts have factually distinguished cases involving anonymous tips concerning drunk drivers. The first federal court to thoroughly discuss the impact of Florida v. J.L. on anonymous tips involving potential drunk drivers was the United States Court of Appeals for the Eighth Circuit in United States v. Wheat, 278 F.3d 722 (8th Cir.2001). We quote extensively from that opinion and adopt the rationale employed by the Wheat Court and the cases cited in that opinion:

“The question we now face is whether, in light of [Florida v.] J.L., [529 U.S. 266 (2000),] an anonymous tip about the dangerous operation of a vehicle whose innocent details are accurately described may still possess sufficient indicia of reliability to justify an investigatory stop by a law enforcement officer who does not personally observe any erratic driving. Recognizing the complexity of this issue, we answer affirmatively, and hold that under the totality of the circumstances of this case, Officer Samuelson had reasonable suspicion to detain the car in which Wheat was a passenger.
“In reaching this conclusion, we have been influenced by the reasoning employed by those state courts that have already considered the issue. The Supreme Courts of Vermont, Iowa, and Wisconsin have held that J.L. does not prevent an anonymous tip concerning erratic driving from acquiring sufficient indicia of reliability to justify a Terry [v. Ohio, 392 U.S. 1 (1968),] stop, even when the investigating officer is unable to corroborate that the driver is operating the vehicle recklessly and therefore unlawfully.
“In the first such decision by a state high court, State v. Boyea, 171 Vt. 401, 765 A.2d 862 (2000), cert. denied, 533 U.S. 917, 121 S.Ct. 2524, 150 L.Ed.2d 696 (2001), the Supreme Court of Vermont affirmed by a 3-2 vote the denial of a motion to suppress where the investigating officer’s sole initial basis for detaining the motorist was an anonymous tip, relayed by a police dispatcher, describing a ‘blue-purple Volkswagen Jetta with New York plates, traveling south on 1-89 in between Exits 10 and 11, operating erratically.’ Id. at 863, 868. Although the court admitted that the case was close, see id. at 867 n. 7, it distinguished J.L. on several grounds. First, it stated that the informant’s accurate description of the vehicle and correct prediction of its location, just minutes before the stop, gave the tip greater reliability than the bare-bones tip in J.L. Second, the court observed that ‘[i]n contrast to the report of an individual in possession of a gun, an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for •prompt action.’ Id. at 867. The court noted that whereas police confronted with a report of a concealed gun could quietly observe the suspect ‘for a reasonable period of time without running the risk of death or injury with every passing moment[, a]n officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury.’ Id. Thus, such a driver is not unlike the ‘bomb’ for which, as the Supreme Court suggested in J.L., a laxer standard of reliability may apply. Id. Finally, the court reasoned that the liberty interest implicated by a simple motor vehicle stop was weaker than the ‘hands-on violation of the person’ that occurred in J.L. Id. at 868.
“A very similar analysis informed the decision of the Supreme Court of Iowa in State v. Walshire, 634 N.W.2d 625 (Iowa 2001). The court found that because a tip about erratic driving describes not concealed criminal activity, as in J.L., but rather ‘illegality open to public observation,’ it therefore ‘demonstrated the tipster’s basis of knowledge’ and its reliability could be demonstrated through corroboration of innocent details. Id. at 627-28. Unlike the unknown informant in J.L., who ‘neither explained how he knew about the gun nor supplied any basis for believing he had inside information,’ 529 U.S. at 271, 120 S.Ct. 1375, the caller in Walshire made it clear that he or she was a private citizen eyewitness to an ongoing crime. 634 N.W.2d at 629. The court also agreed with the Boyea court that the imminent danger of drunk driving ‘might call for a relaxed threshold of reliability,’ and that the intrusion on privacy interests is slight in a vehicle stop as compared to a pat-down on a public street. Id. at 630.
“The Supreme Court of Wisconsin has also upheld an investigatory stop of a vehicle based on an anonymous tip alleging erratic driving, albeit under somewhat stronger factual circumstances. In State v. Rutzinski, 241 Wis.2d 729, 623 N.W.2d 516 (2001), the court considered the reliability of the tip provided by an unidentified motorist calling from a cell phone, contemporaneously describing a black pickup truck that was weaving within its lane, variously driving too fast or too slow, and tailgating. Id. at 733, 623 N.W.2d at 519. Although the investigating officer did not personally observe any such erratic driving, id. at 734, 623 N.W.2d at 519, the court affirmed the denial of the motion to suppress, on three grounds. First, the court found that although the caller was never identified, he or she did indicate during the phone tip that he or she was in the car directly in front of the offending vehicle, and would therefore have been aware of the possibility that the police could have traced his or her identity by recording his or her license plate number. Id. at 747, 623 N.W.2d at 525. Next, the court recognized that the caller explained that ‘he or she was making personal observations of the [suspect driver’s] contemporaneous actions,’ unlike the caller in J.L. Id. at 748, 623 N.W.2d at 526. Finally, like the Boyea court, the court acknowledged that the tip in question suggested that the suspect ‘posed an imminent threat to the public’s safety.’ Id. at 748-49, 623 N.W.2d at 526. The court emphasized that it did not advocate a blanket exception to the reliability requirement for tips concerning alleged drunk driving, but at the same time clearly stated that the ‘extraordinary danger’ of drunk driving meant that any allegation thereof had to be seriously considered in weighing the totality of the circumstances. Id. at 751, 623 N.W.2d at 527.
“A handful of lower state courts to have considered this issue in light of J.L. have reached a different conclusion, however. In Commonwealth v. Lubiejewski, 49 Mass App.Ct. 212, 729 N.E.2d 288 (2000), a Massachusetts appeals court held that an anonymous cellular phone call claiming that a pickup truck had been driving on the wrong side of the road could not justify an investigatory stop. Id. at 213-17, 729 N.E.2d at 290-93. Although the trooper had corroborated all the innocent details about the truck, including its license plate number, he had not personally witnessed any erratic driving, and the caller had already told the dispatcher that the truck had returned to the correct side of the road, so ‘the emergency had ended.’ Id. at 215, 729 N.E.2d at 292. In State v. Boyle, 793 So.2d 1281 (La.Ct.App.2001), a divided Louisiana appeals court held that an anonymous tip that the driver of a particular pick-up truck was intoxicated did not justify a Terry stop of the suspect in his own driveway. Id. at 1284-85. The court focused on the fact that the officers had not witnessed any criminal activity or unusual driving, and on the fact that the stop took place on the suspect’s private property. Id. at 1284. In Washington v. State, 740 N.E.2d 1241 (Ind.Ct.App.2001), an Indiana appeals court reversed the denial of a motion to suppress marijuana seized during an investigatory stop of a vehicle made pursuant to anonymous tip that the driver was possibly drunk, because the officer had not personally observed any dangerous driving during the two miles he followed the car, and had not corroborated any detailed predictions of the suspect’s future behavior. Id. at 1243-1246. And in Stewart v. State, 22 S.W.3d 646 (Tex.Ct.App.2000), a Texas appeals court held that an anonymous tip that a driver had appeared highly intoxicated while entering the vehicle did not justify' a stop, because the description of the suspect was so general that the court questioned whether the officer was certain he had stopped the correct suspect, and the officer had not witnessed any erratic driving. Id. at 648-50. However, in State v. Marks, 2000 WL 33298878 (Conn.Super.Ct.Dec.7, 2000), a Connecticut trial court denied a motion to suppress a stop based on an anonymous tip of erratic driving, even though the officer witnessed no unlawful driving and the tipster refused to identify himself, because the tip took the form of a five-minute 9-1-1 call wherein the caller ‘clearly relay[ed] his first hand observations as events [we]re unfolding before him,’ describing in extensive detail ‘every erratic move’ of the suspect’s car. Id. at *5.
“Prom these cases, and upon further reflection, we believe the following considerations to be integral to a determination of whether an anonymous tip of erratic driving may justify an investigatory stop. In so doing, we bear in mind the Supreme Court’s instruction that ‘Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances.” ’ [Alabama v.] White, 496 U.S. [325] at 330, 110 S.Ct. 2412 [ (1990) ] (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
“First, the anonymous tipster must provide a sufficient quantity of information, such as the make and model of the vehicle, its license plate numbers, its location and bearing, and similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller. The time interval between receipt of the tip and location of the suspect vehicle, though going principally to the question of reliability, may also be a factor here....
“The tip must also contain a sufficient quantity of information to support an inference that the tipster has witnessed an actual traffic violation that compels an immediate stop. A law enforcement officer’s mere hunch does not amount to reasonable suspicion, see Terry, 392 U.S. at 27, 88 S.Ct. 1868; Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); a fortiori, neither does a private citizen’s....
“The second and far more difficult consideration concerns the quality, or degree of reliability, of the information conveyed in an anonymous tip. In J.L., the Court found the anonymous tip unreliable because it ‘provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.’ 529 U.S. at 271, 120 S.Ct. 1375. In the context of an anonymous tip of erratic driving, however, the first challenge is to identify the predictive element of the tip that must be corroborated. Is it that the vehicle is being driven dangerously? Wholly aside from the public safety considerations discussed infra, this seems too stringent, because a police officer who corroborated the claim of reckless driving would then have not merely reasonable suspicion to justify an investigatory stop, but probable cause to make an arrest. See United States v. Bell, 86 F.3d 820, 822 (8th Cir.1996) (‘[A]ny traffic violation, even a minor one, gives an officer probable cause to stop the violator.’); accord United States v. Neumann, 183 F.3d 753, 755-56 (8th Cir.1999); see also Iowa Code § 321.277. Thus, police would lose the intermediate step of investigatory stops based on reasonable suspicion. We think that under the proper circumstances Terry stops strike a careful balance between society’s interest in crime prevention and the individual citizen’s interest in remaining free from wanton government interference, and we are loath to see their use foreclosed in this context.
“... As the court reasoned in Boyea: “ ‘The offense alleged here did not involve a concealed crime — a posses-sory offense. What was described in the police dispatch to the arresting officer was a crime in progress, carried out in public, identifiable and observable by anyone in sight of its commission. Unlike the tip alleged in White — that White was carrying narcotics — ... here a total stranger could have observed defendant’s driving abilities. No intimate or confidential relationship was required to support the accuracy of the observation. The caller simply reported a contemporaneous observation of criminal activity taking place in his line of sight.’
765 A.2d at 875 (Skoglund, J., concurring) (emphasis in original). See also Walshire, 634 N.W.2d at 627-28 (‘[T]he information provided here did not concern concealed criminal activity, but rather illegality open to public observation. The tip here demonstrated the tipster’s basis of knowledge: the caller observed the defendant driving in an erratic manner.’); Rutzinski, 241 Wis.2d at 748, 623 N.W.2d at 526 (‘Unlike the caller in J.L., the informant in this case provided the police with verifiable information indicating his or her basis of knowledge. The informant explained that he or she was making personal observations of Rutzinski’s contemporaneous actions.’). Cf. United States v. Armstead, 112 F.3d 320, 322 n. 3 (8th Cir.1997) (rejecting contention that anonymity of airline agent made his or her tip about a drug courier unreliable, as ‘[t]he exact identity of the airline’s agent is unimportant: it is enough that she or he worked for the airline, ... and would therefore have accurate information’).
“An erratic and possibly drunk driver poses an imminent threat to public safety. See Rutzinski, 241 Wis.2d at 748-51, 623 N.W.2d at 526-27. Of course, arguably so too does a citizen armed with a gun, yet the Supreme Court firmly declined to adopt an automatic firearm exception to the reliability requirement on that basis. J.L., 529 U.S. at 272, 120 S.Ct. 1375. However, there is a critical distinction between gun possession cases and potential drunk driving cases. In the possessory offense cases, law enforcement officers have two less invasive options not available to officers responding to a tip about a drunk driver. First, they may initiate a simple consensual encounter, for which no articulable suspicion is required. See Florida v. Rodriguez, 469 U.S. 1, 5-7, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam). Needless to say, that is not possible when the suspect is driving a moving vehicle.
“Alternatively, officers responding to a tip about a possessory violation may quietly observe the suspect for a considerable length of time, watching for other indications of incipient criminality that would give them reasonable suspicion to make an investigatory stop — as, for example, in Terry, where an experienced officer witnessed several men casing a joint. 392 U.S. at 5-7, 88 S.Ct. 1868. By contrast, where an anonymous tip alleges erratic and possibly drunk driving, a responding officer faces a stark choice. As the Boyea court noted, he can intercept the vehicle immediately and ascertain whether its driver is operating under the influence of drugs or alcohol. 765 A.2d at 862. Or he can follow and observe, with three possible outcomes: the suspect drives -without incident for several miles; the suspect drifts harmlessly onto the shoulder, providing corroboration of the tip and probable cause for an arrest; or the suspect veers into oncoming traffic, or fails to stop at a light, or otherwise causes a sudden and potentially devastating accident. Id. In contradistinction to J.L., where the suspect was merely standing at the bus stop, in this context the suspect is extremely mobile, and potentially highly dangerous. See Boyea, 765 A.2d at 867 (‘[A] drunk driver is not at all unlike a “bomb,” and a mobile one at that.’). Thus, we think that there is a substantial government interest in effecting a stop as quickly as possible.
“That interest must be balanced against the individual’s right to remain free from unreasonable government intrusion. See Terry, 392 U.S. at 20-21, 88 S.Ct. 1868. We readily acknowledge that citizens have a liberty interest in proceeding unmolested along public highways and that investigatory stops create a substantial intrusion on that interest. See Delaware v. Prouse, 440 U.S. 648, 657, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (noting that vehicular stops interfere with freedom of movement, are inconvenient, consume time, and may create substantial anxiety). At the same time, we think that such stops are considerably less invasive, both physically and psychologically, than the frisk on a public corner that was at issue in J.L. See Boyea, 765 A.2d at 868 (reasoning that the liberty interest implicated by a vehicular stop is weaker than the ‘hands-on violation of the person’ of the public frisk in J.L.); Walshire, 634 N.W.2d at 630. Recognizing the ‘magnitude of the drunken driving problem,’ the Supreme Court has approved the use by law enforcement of brief roadside sobriety checkpoints. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). We rather doubt that a like recognition of the dangers of illegal handguns would lead the Court to approve a scheme of randomly placed magnetometers (‘metal detectors’) on public sidewalks, even in high-crime neighborhoods.
“After careful consideration of all of the above factors, we find that the initial stop of the vehicle in which Wheat was a passenger was not unreasonable under the totality of the circumstances. An anonymous caller provided an extensive description of a vehicle that, based on his contemporaneous eyewitness observations, he believed was being operated dangerously, and cited specific examples of moving violations. When Officer Samuelson caught up with the vehicle minutes later while it was stopped at an intersection, he corroborated all its innocent details, confirming that it was the one identified by the tipster. Within seconds after the vehicle resumed motion, Officer Samuelson effected an immediate investigatory stop, rather than allow it to proceed and potentially endanger other vehicles. Under the totality of the circumstances, he had reasonable suspicion to do so, and the stop was valid under the Fourth and Fourteenth Amendments.”

United States v. Wheat, 278 F.3d at 729-37 (footnotes omitted). Other states have followed the rationale and holding in Wheat. See State v. Scholl, 684 N.W.2d 83 (S.D. 2004) (upheld traffic stop based on anonymous tip not corroborated by police observation); State v. Golotta, 178 N.J. 205, 218, 837 A.2d 359, 366 (2003) (“We agree with those courts that have reduced the degree of corroboration necessary to uphold a stop of a motorist suspected of erratic driving in these circumstances.”).

As the Supreme Court of New Hampshire noted in State v. Sousa, 151 N.H. 297, 855 A.2d 1284 (2004):

“Since J.L., a few intermediate state appellate courts have concluded that anonymous tips of drunk or erratic driving are unreliable, requiring police corroboration of the tip’s incriminating details. See Washington v. State, 740 N.E.2d 1241, 1246 (Ind.Ct.App.2000), cert. denied, 753 N.E.2d 7 (Ind.2001); State v. Boyle, 793 So.2d 1281, 1288-85 (La.Ct.App.2001); Com. v. Lubiejewski, 49 Mass.App.Ct. 212, 729 N.E.2d 288, 291 (2000); Hall v. State, 74 S.W.3d 521, 525-27 (Tex.App.2002).
“By contrast, every state court of last resort that has directly addressed the issue has concluded that, in a drunk or erratic driving case, certain tips are sufficiently reliable and detailed, when viewed in the totality of the circumstances, to establish reasonable suspicion. See Bloomingdale v. State, 842 A.2d 1212, 1217-22 (Del.2004); State v. Prendergast, 103 Hawai'i 451, 83 P.3d 714, 723-24 (2004); State v. Walshire, 634 N.W.2d 625, 630 (Iowa 2001); State v. Crawford, 275 Kan. 492, 67 P.3d 115, 119-20 (2003); State v. Lafond, 802 A.2d 425, 429-30 (Me.2002); State v. Golotta, 178 N.J. 205, 837 A.2d 359, 366-69 (2003); State v. Scholl, 684 N.W.2d 83, 85-86 (S.D.2004); [State v.] Boyea, [171 Vt. 401,] 765 A.2d [862] at 868 [ (2000) ]. The Eighth Circuit Court of Appeals, the only federal appellate court to address the issue, concurs. United States v. Wheat, 278 F.3d 722, 731-34 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S.Ct. 194, 154 L.Ed.2d 81 (2002).”

151 N.H. at 301-02, 855 A.2d at 1288. See also Jon A. York, Search and Seizure: Law Enforcement Officers’ Ability to Conduct Investigative Traffic Stops Based upon an Anonymous Tip Alleging Dangerous Driving when the Officers Do Not Personally Observe Any Traffic Violations, 34 U.Mem.L.Rev. 173 (2003).

“A motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible.” State v. Tucker, 19 Kan.App.2d 920, 923, 878 P.2d 855, 861 (1994). “The United States Department of Transportation’s National Highway Traffic Safety Administration estimates that alcohol was involved in forty-one percent of fatal crashes and seven percent of all crashes in 2001.” See 34 U.Mem.L.Rev. at 194 n. 125.

It is well documented that drunk drivers pose a real and serious risk to themselves and the public. In the interest of public safety, an officer should be able to stop a driver and determine whether he or she is, indeed, driving while intoxicated. The minimal intrusion caused by such a brief, investigatory stop is slight compared to the potential risk of harm or even death to the public. We now join our sister states of Vermont, Iowa, Wisconsin, South Dakota, New Jersey, New Hampshire, Hawaii, Delaware, and Kansas, and hold that an anonymous tip concerning a potential drunk driver may be sufficiently reliable to justify a Terry stop without independent corroboration by the police.

However, we must assess the reliability of the anonymous tip using the factors discussed in Wheat: the quantity and quality of the information furnished by the informant, the length of time between the informant’s tip and police contact with the potential drunk driver, and the informant’s basis of knowledge. See Wheat, supra.

In this case, the citizen informant described the make and model of the vehicle, pointed the vehicle out to the police officer — the vehicle was in the officer’s sight in traffic ahead of the informant and the police officer — and described the occupants of the vehicle. Officer Beams stopped the vehicle within minutes of receiving the tip. Moreover, the informant told police that he had personally seen all three occupants of the car drinking beer and that the car had been “swerving all over the road.”

Assessing the facts in this case using the totality-of-the-circumstances approach, we hold that the anonymous tip was sufficiently reliable, in itself, to warrant the investigatory stop. Accordingly, the gun seized as a result of that stop was correctly received into evidence.

For these reasons, we affirm Cottrell’s conviction for possessing a firearm with an altered serial number.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.

      . State v. Lafond, 802 A.2d 425, 428 (Me.2002) (“It is not self-evident that J.L. is even applicable to a traffic stop_”).


source: Caselaw Access Project

author: CANTERO, J.

license: Public Domain

text:
    Theodore SPERA, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1304.
    Supreme Court of Florida.
    Nov. 1, 2007.
    Rehearing Denied Dec. 26, 2007.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Senior Assistant Attorney General, and Mark -J. Ha-mel, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   CANTERO, J.

This case involves a narrow issue of law that begs a broader resolution. It stems from our decision in Nelson v. State, 875 So.2d 579, 581 (Fla.2004), where we held that a defendant claiming ineffective assistance of counsel for failing to call witnesses at trial must allege that the witness was available to testify. We allowed the defendant to amend the claim to add such an allegation. In the case under review, the Fourth District Court of Appeal applied Nelson narrowly, holding that it allowed amendments to postconviction motions to remedy only “technical omissions,” not a complete failure of pleading. Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006) (en banc). That holding conflicts with the Second District Court of Appeal’s decision in Keevis v. State, 908 So.2d 552 (Fla. 2d DCA 2005), which applied Nelson more broadly to other pleading deficiencies in a claim alleging counsel’s failure to call witnesses at trial and also noted the need for a consistent approach for all postconviction claims. We granted review to resolve the conflict. See art. V, § 3(b)(3), Fla. Const.; Spera v. State, 945 So.2d 1291 (Fla.2006) (granting review). Having reviewed the briefs and heard argument on the issue, we are convinced that a narrow resolution of this issue will lead to confusion and further litigation over which deficiencies justify amendment. Accordingly, to establish uniformity in the criminal postconviction process, we 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.

I. FACTS

Spera was convicted of fleeing or attempting to elude a law enforcement officer and burglary of an occupied dwelling. His conviction was affirmed. See Spera v. State, 833 So.2d 150 (Fla. 4th DCA 2002). He then filed a postconviction motion alleging that trial counsel was ineffective because he failed to “call witnesses on Defendant’s behalf, although he had been instructed to do so.” The trial court found the claim facially insufficient and dismissed the case.

On appeal, the district court considered our recent decisions in Nelson and Bryant v. State, 901 So.2d 810 (Fla.2005), and concluded that under these circumstances they did not require a trial court to permit an amendment. The court, acting en banc, unanimously receded from its panel decision in Frazier v. State, 912 So.2d 54, 56 (Fla. 4th DCA 2005), to the extent it required leave to amend any facially insufficient claim that counsel was ineffective for failing to call witnesses. Spera, 923 So.2d at 545-46.

II. DISCUSSION OF LAW

We now review the applicable law and apply it to this case. In the following sections, we begin by examining the conflict on this issue between the Second and Fourth District Courts of Appeal. We then review the pleading requirements for postconviction motions under Florida Rule of Criminal Procedure 3.850 and United States Supreme Court precedent, as well as the opportunities defendants currently have to remedy insufficient motions by filing either amended motions or successive ones. We then review our recent decision in Bryant, which allowed defendants sentenced to death an opportunity to amend insufficient pleadings. Finally, we apply the holding in Bryant to all criminal defendants.

A. The Conflict in the Courts

In Spera, the Fourth District recognized conflict with the Second District’s decision in Keevis. Spera, 923 So.2d at 546. This conflict arises from the courts’ divergent interpretations of our decision in Nelson, 875 So.2d at 581. In that case, a defendant’s postconviction motion alleged that counsel was ineffective for failing to call, interview, or investigate witnesses for trial. We held that in addition to alleging the identity of the witnesses, the substance of their testimony, and how the defendant was prejudiced, a movant must allege that the witness was available to testify at trial. Nelson, 875 So.2d at 584. The defendant had not done so, and we allowed him to amend his claim. We also outlined a procedure for amending a facially insufficient claim in that context:

We do not, however, want postconviction relief to be denied simply because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. Therefore, when a defendant fails to allege that a witness would have been available, the defendant should be granted leave to amend the motion within a specified time period. If no amendment is filed within the time allowed, then the denial can be with prejudice.

Id. at 583-84.

Initially, both the Second and Fourth Districts applied Nelson broadly. That is, whether the movant failed to include one or all of the allegations required for a claim that counsel failed to call witnesses, both courts held that the defendant must be allowed to amend the claim. See, e.g., Sage v. State, 905 So.2d 1039, 1042 (Fla. 2d DCA 2005) (allowing the defendant to amend a claim that omitted the identity and availability of the witnesses and the substance of their testimony); Frazier v. State, 912 So.2d 54, 56 (Fla. 4th DCA 2005) (holding that where the defendant “failed to include any of the key allegations,” Nelson required an opportunity to amend the claim). In Keevis, the Second District reiterated its prior view. 908 So.2d at 553. The court also noted that allowing amendment of claims for failure to call witnesses, but not of other ineffective assistance claims, presented a “need for uniformity in the procedure for addressing” all facially insufficient claims. Id. at 554.

In contrast, the Fourth District in Spera receded from its prior broad application of Nelson:

Our review of Nelson reflects that the supreme court was recognizing that when the movant has failed to allege whether the missing witnesses were available to testify at trial, a period of time to allow for an amendment should be granted. 875 So.2d at 583-84. However, we do not read the Nelson opinion as extending this relief from an essentially technical omission to the point where a movant who wholly fails to present sufficient facts as to any aspect of a claim of prejudice should, automatically, be granted 'leave to amend the motion.
On further consideration, we do not interpret Nelson as encompassing the extended application we mandated by Frazier. But see Keevis v. State, 908 So.2d 552 (Fla. 2d DCA 2005) (broadly applying Nelson to encompass any omission in pleading). We conclude that if the supreme court intended to announce a requirement that when any post-conviction motion fails to meet any pleading requirement for post-conviction relief, an order denying relief must deny relief with leave to amend, it would certainly have stated such a requirement more explicitly.

Spera, 923 So.2d at 545. The Fourth District concluded that under Nelson amendments should be permitted only where the defendant omitted the “technical” requirement of alleging a witness’s availability. Because Spera’s claim did not include any of the required allegations, the court concluded that he was not entitled to amend the claim.

Thus, the Fourth District reads our decision in Nelson narrowly to apply only where the pleading deficiency is a “technical omission” — such as the element of the claim involved in Nelson; while Keevis reads it as applying broadly to any pleading deficiency.

We now review the requirements for filing and amending motions for postcon-viction relief.

B. Pleading Requirements Under the Rule and Strickland.

The general requirements for filing a motion to vacate a criminal judgment and sentence, known as postconviction motions, are outlined in Florida Rule of Criminal Procedure 3.850. The rule lists the available grounds for filing a motion, establishes' deadlines, ánd outlines the required contents of a motion. These include the “nature of the relief sought” and “a brief statement of the facts (and other conditions) relied on in support of the motion.” Fla. R.Crim. P. 3.850(a)-(c). Because most postconviction motions are filed pro se, the rules also contain a form to help defendants file .their motions. See Fla. R.Crim. P. 3.987. This form explains that the defendant must “[s]tate concisely every ground on which [the defendant] claim[s] that the judgment or sentence is unlawful” and lists the “most frequently raised grounds for postconviction relief,” including the ineffective assistance of counsel.

Although the form advises defendants to include facts supporting each claim, neither the rule nor the form explains the pleading requirements for a claim of ineffective assistance of counsel. Those requirements, were established years ago in Strickland v. Washington, 466 U.S, 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that ease, the United States Supreme Court created a two-pronged test. The deficient performance prong requires a defendant to identify specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. The prejudice prong requires the defendant to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A motion claiming ineffective assistance of counsel must include facts establishing both deficient performance of counsel and prejudice to the defendant.

Upon receiving a motion filed under rule 3.850, the court must first “determine whether the motion is facially sufficient, i.e., whether it sets out a cognizable claim for relief based upon the legal and factual grounds asserted.” Jacobs v. State, 880 So.2d 548, 550 (Fla.2004); see Fla. R.Crim. P. 3.850(d). Only after the trial court deems the motion (or the particular claims within it) facially sufficient does it review the record for evidence refuting the claim.

Thus, rule 3.850 distinguishes between claims that are facially insufficient and those that are facially sufficient but are also conclusively refuted by the record. A determination of facial sufficiency will rest upon an examination of the face, or contents, of the postconviction motion. Because the determination of facial sufficiency under rule 3.850 is one of law and involves an evaluation of the legal sufficiency of the claim alleged, the evidence in the record will ordinarily be irrelevant to such an evaluation.

Jacobs, 880 So.2d at 551 (emphasis added). To determine the facial or legal sufficiency of a claim of ineffective assistance of counsel, the court applies Strickland’s two-pronged test. See Jones v. State, 845 So.2d 55, 65 (Fla.2003) (“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.”). Failure to sufficiently allege both prongs results in a summary denial of the claim. See Thompson v. State, 796 So.2d 511, 514 n. 5 (Fla. 2001) (affirming the summary denial of ineffectiveness claims in part as “legally and facially insufficient” under Strickland because the defendant failed to “allege[ ] how he was prejudiced by counsel’s failure to object or raise the asserted error”).

When a defendant files a facially insufficient claim, the trial court has the discretion to permit an amendment. See, e.g., Sampson v. State, 793 So.2d 149, 150 (Fla. 2d DCA 2001) (holding that the defendant’s claim that counsel was ineffective for failing to move to dismiss a defective information was facially insufficient, but allowing the defendant to file a motion curing the insufficiency). The rule also provides a more formal way to remedy a pleading deficiency by allowing the defendant to file a successive motion. The rule provides that

[a] second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits, or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

Fla. R.Crim. P. 3.850(f). A trial court “may not summarily dismiss a successive motion for post-conviction relief that raises issues that were either summarily denied or dismissed for legal insufficiency in the initial motion.” Christopher v. State, 489 So.2d 22, 24 (Fla.1986); see McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983) (stating that the prohibition against successive motions applies “only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency”); see also Frew v. State, 947 So.2d 1275, 1276 (Fla. 2d DCA 2007) (stating that the circuit court’s discretion to dismiss a motion as successive under rule 3.850(f) “does not apply when the previous motion was summarily denied or dismissed for legal insufficiency”); Mancebo v. State, 931 So.2d 928, 929 (Fla. 3d DCA 2006) (“Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.”). Under rule 3.850(f), therefore, a defendant whose postconviction claim is denied as facially insufficient may file a successive motion raising the same claim but remedying the insufficiency-

The caveat in the rule, however, is that successive motions must be filed by the two-year deadline in the rule. See Fla. R.Crim. P. 3.850(b) (specifying time limits for postconviction motions). Thus, defendants whose initial postconviction motions are dismissed as insufficient after the deadline expires cannot avail themselves of the rule.

Defendants also have another avenue, albeit one not mentioned in the rule, for amending deficient postconviction motions. We have held that a trial court abuses its discretion when it refuses to consider amendments to a motion filed before the deadline and before the trial court rules on the motion. See Gaskin v. State, 737 So.2d 509, 518 (Fla.1999) (holding that the court erred in denying an amended motion filed before the trial court ruled on the original motion and before the two-year time limit expired, but finding the error harmless because the new claims were procedurally barred), receded from on other grounds by Nelson, 875 So.2d at 583; see also Hyacinthe v. State, 940 So.2d 1280, 1281 (Fla. 4th DCA 2006) (“[A] 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion.”). Again, however, the amended motion must be filed before the deadline expires.

A gap therefore remains for defendants who file a timely but insufficient initial postconviction motion, but whose amended or successive motion would be filed after the deadline. As explained below, in interpreting the corresponding postconviction rule for defendants sentenced to death, we closed that gap and allow defendants to amend insufficiently pled motions. We now review our decision in Bryant v. State and discuss its applicability to motions filed under rule 3.850.

C. Bryant and the District Courts

As the district court noted in this case, our decision in Nelson was limited to motions alleging ineffective assistance by failing to call witnesses for trial. In Spera, the court held that Nelson applied only in that limited context. The court relied on our decision in Bryant, decided a year after Nelson, to read Nelson narrowly. 923 So.2d at 545. Yet in Keevis, the Second District relied on that same case to read Nelson broadly. 908 So.2d at 553. We now review that decision and explain the source of the confusion.

In Bryant, a defendant sentenced to death filed his postconviction motion under a separate but analogous rule, Florida Rule of Criminal Procedure 3.851. Bryant, 901 So.2d at 816. The State moved to strike the motion because of various pleading deficiencies: “Bryant failed (1) to attach a copy of the judgment and sentence; (2) to plead his claims separately, detailing the facts; and (3) to justify raising issues in a collateral pleading which either were or could have been raised on direct appeal.” 901 So.2d at 817. The trial court granted the motion, without specifying the ground. Id. After the deadline for filing a postconviction motion had expired, Bryant requested permission to amend the stricken motion, which the court granted. Subsequently, however, the trial court concluded that the amended motion did not relate back to the original and because the amended motion was filed after the deadline, it was procedurally barred. Ruling in the alternative, the court dismissed the amended motion for lack of jurisdiction and also summarily denied it on the merits. Id.

We first held that “the trial court abused its discretion in striking the initial motion without granting leave to amend.” Id. Examining the original motion, we noted that this was no “ ‘shell motion’ ... filed merely to comply with the filing deadline,” id. at 818, and that, had the court stricken the motion with leave to amend, the amended motion would have related back to the original. Id. We further concluded that “due process demands that some reasonable opportunity” should be given to amend such motions. Accordingly, we held “that when a defendant’s initial postconviction motion fails to comply with the requirements of rule 8.851, the proper procedure is to strike the motion with leave to amend within a reasonable period.” Id. at 819.

As with our decision in Nelson, the Second and Fourth Districts have interpreted Bryant in disparate ways. In Spera, the Fourth District noted that in Bryant the original motion was stricken for “mostly technical deficiencies in form,” 923 So.2d at 545 (quoting Bryant, 901 So.2d at 819), and that after those deficiencies were corrected, “there [was] no discussion that the ultimate motion should have been denied with leave to amend the substantive deficiencies.” Id. The district court concluded that Bryant “could be read as endorsing an expanded view of allowing amendments, but solely where the ‘failure to comply with the rule is more a matter of form than substance.’” Id. (quoting Bryant, 901 So.2d at 819). On the other hand, in Keevis the Second District acknowledged that “the facts surrounding the holding in Bryant may be read to indicate that when any postconviction motion fails to meet the pleading requirements of the rule itself, the proper procedure is to strike the motion with leave to amend.” Keevis, 908 So.2d at 553.

We do not agree with the Fourth District that in permitting amendment of deficient pleadings, Bryant distinguished between form and substance. Indeed, at the initial pleading stage, which involves allegations — not proof — the two can be difficult to distinguish. It is true that in Bryant the defendant failed to attach the judgment and sentence; but according to the State’s motion, he also failed to “plead his claims separately, detailing the facts,” 901 So.2d at 817, an arguably substantive deficiency similar to Spera’s failure to plead the required facts of his ineffective assistance claim. See Spera, 923 So.2d at 544 (noting that Spera “failed to identify any of the witnesses or describe what testimony would support his defense, or to confirm that the witnesses were available to testify at the time of trial”). Therefore, contrary to the Fourth District’s interpretation, in Bryant both the trial court and this Court, in concluding that the amended motion was facially insufficient, reviewed the motion as amended substantively (detailing the facts supporting the claims) as well as to form (failing to attach the judgment and sentence). Yet we approved the trial court’s striking Bryant’s original motion as legally insufficient; approved the trial court’s permitting Bryant to amend the motion; and approved the court’s finding that the amended motion was insufficient (the alternative ruling to dismissing for lack of jurisdiction). What we disapproved was the court’s failure, when striking the original motion, to grant leave to amend at that time so that the amended motion would relate back to the date of the original. In that regard, we held that

when a defendant’s initial postconviction motion fails to comply with the requirements of rule 3.851, the proper procedure is to strike the motion with leave to amend within a reasonable period. Normally that will be between ten and thirty days, although special circumstances may dictate an extension greater than thirty days. The striking of further amendments is subject to ah abuse of discretion standard that depends on the circumstances of each case.

901 So.2d at 819. We now explain why such a procedure should apply to all post-conviction motions.

D. Applying Bryant to Motions Filed Under Rule 3.850

The tension between Spera and Keevis over the breadth of our decisions in Nelson and Bryant comes down to the question of which pleading deficiencies should be worthy of amendment and whether there is “a need for uniformity in the procedure for addressing pro se, facially insufficient claims of ineffective assistance of counsel.” Keevis, 908 So.2d at at 554. As we explained previously, in some circumstances defendants already are permitted to remedy deficiencies by filing timely amended motions or successive motions. Then, in Bryant, we held that “due process demands” that defendants sentenced to death be given a reasonable opportunity to amend a legally insufficient postconviction motion. Bryant, 901 So.2d at 819. As we noted previously, however, a gap in rule 3.850 remains, so that defendants whose initial postconviction claims are dismissed after the deadline expires currently cannot file either an amended motion or a successive one. We conclude that we should close that gap and allow all defendants an opportunity to amend facially insufficient postconviction claims.

The reasoning in Bryant, based on due process concerns, logically extends to other postconviction claims. In Bryant, we noted that “[i]n a civil context, striking pleadings and dismissing with prejudice are considered severe sanctions that require a strong justification,” 901 So.2d at 817, and that “dismissing a [civil] complaint without granting at least one opportunity to amend is considered an abuse of discretion unless the complaint is not amendable.” Id. at 818 (citing cases). That same logic applies not only to post-conviction claims of prisoners sentenced to death, which was the narrow issue in Bryant, but to all criminal defendants.

Nor do we think , we can draw even a fuzzy line between “technical” omissions, worthy of amendment, and other omissions not so worthy. Such vague distinctions will only produce more litigation and further delay proceedings while appeals are taken to define the rule’s parameters.

Accordingly, when 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. As we did in Bryant, we hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less. The striking of further amendments is subject to an'abuse of discretion standard that depends on the circumstances of each case. As we did in Bryant, we stress here, too, that “we do not intend to authorize ‘shell motions’ — those that contain sparse facts and argument and are filed merely to comply with the deadlines, with the intent of filing an amended, more substantive, motion at a later date.” Bryant, 901 So.2d at 819. :

We also stress that our decision is limited to motions deemed facially insufficient to support relief — that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings.

Finally, we warn that our decision today permits defendants to amend defective pleadings only if they can be amended in good faith. It is not an invitation to frivolous pleading. Our concern in Nelson' was that defendants not be denied postconviction relief simply because of a pleading defect “if that pleading defect could be remedied by a good faith amendment to the motion.” 875 So.2d at 588 (emphasis added). We did not invite frivolous amendments, and we did not recede from, or create an exception to, previous cases warning against frivolous pleading. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (“However, any citizen, including a citizen attacking his or her conviction, abuses the right to pro se access by filing repetitious and frivolous pleadings, thereby diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims.”); accord Wallace v. State, 931 So.2d 173, 174 (Fla. 5th DCA 2006) (affirming the denial of a “frivolous” pro se postconviction motion and prohibiting the defendant from filing further pro se pleadings). Not only are such postconviction motions subject to sanctions; they also may result in disciplinary action. See §§ 944.279(1), .28, Fla. Stat. (2006). Further, rules 3.850 and 3.851 require that defendants file these postconviction motions under oath and penalty of perjury that all the facts alleged are true. See Fla. R.Crim. P. 3.850(c), 3.851(e); see also Fla. R.Crim. P. 3.987 (providing a form for motions and warning that “[a]ny false statement of a material fact may serve as the basis for prosecution and conviction for perjury”); Stevens v. State, 947 So.2d 1227, 1228 (Fla. 2d DCA 2007) (“The purpose of the oath is to prevent false factual allegations by subjecting the movant to prosecution for perjury if the factual allegations in the motion prove to be false.”). Neither Nelson nor Bryant condones making factual allegations simply to comply with pleading requirements when the defendant knows the alleged facts are untrue. Accordingly, our decision is designed to allow amendments where the defendant can, in good faith, correct the deficiency.

III. CONCLUSION

In accordance with our holding today, we quash the Fourth District’s decision and remand with directions that the trial court be ordered to permit petitioner to file an amended pleading, if indeed he can do so in good faith.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, and BELL, JJ„ concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Postconviction motions may also be filed under Florida Rule of Criminal Procedure 3.800, but such motions address facial defects in the sentence imposed. They do not address ineffective assistance of counsel.

      . Under these statutes, a court "shall” certify to the Department of Corrections that a prisoner’s collateral motion is frivolous or that the defendant "knowingly or with reckless disregard for the truth brought false information or evidence before the court,” which may result in the prisoner’s forfeiture of gain-time. See, e.g., Rivera v. State, 943 So.2d 973, 974 (Fla. 5th DCA 2006) (certifying a statutory finding regarding a petition for belated appeal to the Department and stating, "We have not suffered dishonesty lightly in the past and we will not relax our intolerance now”); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005) (finding a postconviction motion frivolous and certifying the finding to the Department "for consideration of disciplinary procedures”).