Difference Between Post Conviction Motions and Civil Complaints

Postconviction motions differ from civil complaints in significant respects. Postconviction motions cannot be "dismissed" as complaints can. Nevertheless, the same principles apply. Although a trial court may "strike" a postconviction motion where a civil complaint would be "dismissed," the trial court, like the court in the civil context, should grant leave to amend the motion to cure the defects that led the court to strike the original motion. In the civil context, dismissing a complaint without granting at least one opportunity to amend is considered an abuse of discretion unless the complaint is not amendable. See: Sonny Boy, L.L.C. v. Asnani, 879 So. 2d 25, 28-29 (Fla. 5th DCA 2004) (holding that refusal to allow amendment of a complaint is an abuse of discretion unless "it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile"); Thompson v. Jared Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004) (same); Cason v. Fla. Parole Comm'n, 819 So. 2d 1012, 1013 (Fla. 1st DCA 2002) (same); Hayward & Assocs., Inc. v. Hoffman, 793 So. 2d 89, 90 n.3 (Fla. 2d DCA 2001) (stating that because the complaint in question was the first submitted by the plaintiff, "to enter a final order dismissing the complaint with prejudice and without opportunity to amend would have been an abuse of discretion"); Nev. Interstate Props. Corp. v. City of West Palm Beach, 747 So. 2d 447, 448 (Fla. 4th DCA 1999) (stating that it is an abuse of discretion to dismiss a complaint without leave to amend "without giving the party offering the defective pleading an opportunity to amend, unless it is apparent that the pleading cannot be amended so as to state a cause of action"); Imperatore v. Nationsbank of Florida, 677 So. 2d 933, 935 (Fla. 4th DCA 1996) (finding abuse of discretion where the trial court dismissed a complaint with prejudice without allowing the plaintiff to amend); Balcar v. Ramos, 595 So. 2d 308, 308 (Fla. 4th DCA 1992) (stating same as Nev. Interstate Props. Corp.). In Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983), the Court held: We agree that the striking of pleadings . . . is the most severe of all sanctions which should be employed only in extreme circumstances. a deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.