FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D19-1095
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TYRIQUE JACQUAN MORGAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                       September 10, 2020


PER CURIAM.

     Tyrique Morgan, Appellant, appeals the trial court’s order
summarily denying his motion for postconviction relief filed under
Florida Rule of Criminal Procedure 3.850. We reverse and remand
because the trial court improperly denied Appellant’s claim of
newly-discovered evidence without giving him an opportunity to
amend where the claim was facially insufficient and not refuted by
the record.

     Appellant entered a partially negotiated plea of guilty in
which the State agreed to let him plead guilty to attempted second-
degree murder, armed robbery, and possession of a firearm. There
was no agreement as to Appellant’s sentence, and Appellant was
ultimately sentenced to a total of 25 years in prison followed by 5
years of probation. This Court affirmed Appellant’s judgments and
sentences and issued its mandate on August 11, 2017.

    On September 7, 2018, Appellant filed the instant motion to
withdraw his plea. Appellant attached an affidavit that identified
someone else as the actual perpetrator of the armed robbery and
shooting. The affiant, Anthony Tyrone Jones, claimed that
perpetrator called him just after the robbery and shooting and told
him to “turn on the news, as he was on television robbing
someone.” The affiant claimed that the perpetrator was the one
who shot the victim and claimed that the perpetrator also told his
parents what he did.

     In his motion, Appellant claimed he obtained this evidence in
the last two years, Mr. Jones was unknown to Appellant, and his
counsel could not have known by due diligence prior to then.
Appellant claimed his stipulation to the factual basis for his plea
was for plea purposes only, but had he known of this evidence, he
would not have pleaded guilty.

    The lower court properly construed the motion as filed
pursuant to Florida Rule of Criminal Procedure 3.850 and ordered
the State to respond. Ultimately, after considering the State’s
response, the lower court summarily denied the motion, and this
timely appeal followed.

     Here, Appellant challenges the trial court’s denial of his
motion. We find that reversal is required. As conceded by the State
in its response to this Court’s Toler * order, the trial court abused
its discretion when it failed to provide Appellant an opportunity to
amend his facially insufficient claim. In asserting a claim of newly
discovered evidence, Appellant was required to demonstrate that
the evidence was not known to him or his counsel and could not
have been discovered with due diligence by the time of trial. See
Murrah v. State, 

, 623 (Fla. 1st DCA 2000). Here,
Appellant failed to allege any facts demonstrating how and when
he became aware of the affiant, the affidavit, or any other facts to
support his contention that his motion is timely. Because

    *   Toler v. State, 

(Fla. 1st DCA 1986).

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Appellant has not alleged sufficient facts in support of his claim
that the evidence is newly-discovered, the claim is facially
insufficient. See Burns v. State, 

, 97 (Fla. 2d DCA
2013) (holding that the appellant’s motion was facially insufficient
where the appellant did not demonstrate “when or how he
discovered the evidence or why it could not have been discovered
sooner.”).

     However, because the claim is not refuted by the record and is
facially insufficient, the lower court should have allowed Appellant
an opportunity to amend. See Spera v. State, 

, 761–
62 (Fla. 2007) (holding that a defendant should be given an
opportunity to amend a facially insufficient rule 3.850 motion
where the claim is not conclusively refuted by the record). As such,
we reverse the lower court’s order and remand for the court to
provide Appellant with an opportunity to amend his facially
insufficient claim.

    REVERSED and REMANDED for further proceedings.

LEWIS, B.L. THOMAS, and NORDBY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Mark S. Barnett of The Barnett Law Firm, PLLC, Jacksonville, for
Appellant.

Ashley Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




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