Zarr v. State

NORTHCUTT, Judge. Edwin Zarr challenges the postconviction court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the court’s decision in all respects except one: the denial of Zarr’s ground two, in which he claimed his counsel was ineffective for failing to object to an allegedly improper and nonstandard jury instruction. Relying on State v. Bouchard, 922 So.2d 424 (Fla. 2d DCA 2006), the court denied the claim because Zarr failed to show the prejudicial effect of the instruction on the outcome at trial; the motion claimed prejudice based only on counsel’s failure to preserve the issue for appellate review. Zarr contends he should have been permitted to amend his claim and we agree. See Spera v. State, 971 So.2d 754 (Fla.2007). We therefore reverse the denial of ground two of Zarr’s motion and remand with directions that he *646 be given an opportunity to amend this claim. Affirmed in part, reversed in part, and remanded. SILBERMAN and VILLANTI, JJ., Concur.