LEO CLYDE SAXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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SHARP, Judge.
The petitioner pro se appeals from an order of the trial court denying his petition to vacate his judgment and sentence. He claims his plea was not voluntarily entered, one of the express grounds for collateral attack set forth in Rule 3.850 of the Florida Rules of Criminal Procedure. Petitioner al leged he was ill and under heavy sedation. On the date he entered his “nolo” plea he had just been released from the hospital. He had a duodenal ulcer, suffered considerable bleeding, was “stabilized” in the hospital and released. The hospital records attached do not indicate whether pain-killers or sedatives were given to the petitioner. The motion, however, is defective on its face because it does not state whether an appeal was taken, and whether other post-conviction remedies were sought, as required by Rule 8.850(b) and (c). We therefore affirm the lower court’s order, but without prejudice to the petitioner to refile upon compliance with Rule 3.850(b) and (c). Catlett v. State, 367 So. 2d 735 (Fla. 4th DCA 1979); Scott v. State, 364 So. 2d 67 (Fla. 4th DCA 1978).
CROSS and UPCHURCH, JJ., concur.
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Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)…us, appellant should have filed a 3.850 motion to vacate the judgment and sentence and his 3.800 motion to correct was properly denied. The 3.800 motion as filed does not substantially comply with the requirements of rule 3.850. See Saxon v. State, 384 So. 2d 35 (Fla. 5th DCA 1980). Even if we treated the motion as a 3.850 motion, we would set aside the judgment as well as the sentence, not merely remand for resentencing. If the foundation of the sentence is defective, a new sentence cannot correct it. Only…
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Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)…equirements of that rule. See Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). The motion failed to state whether an appeal or other post-conviction remedies had been undertaken, Evans v. State, 388 So. 2d 1366 (Fla. 5th DCA 1980); Saxon v. State, 384 So. 2d 35 (Fla. 5th DCA 1980), and it was not under oath. See Gorham v. State, 494 So. 2d 211 (Fla.1986); Scott v. State, 464 So. 2d 1171 (Fla.1985). However, as we see it, Martin’s unsworn motion, signed by her trial counsel, was properly filed pursuant to F…
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Brooks v. State, 386 So. 2d 872 (Fla. 1st DCA 1980)…ower court’s order is affirmed. However, such affirmance is without prejudice to appellant to refile in compliance with Rule 3.850(b) and (c), Florida Rules of Criminal Procedure. Catlett v. State, 367 So. 2d 735 (Fla. 4th DCA 1979); Saxon v. State, 384 So. 2d 35 (Fla. 5th DCA 1980). McCORD, BOOTH and SHAW, JJ., concur.…
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- Scott v. State, 364 So. 2d 67 (Fla. 4th DCA 1978)
- Catlett v. State, 367 So. 2d 735 (Fla. 4th DCA 1979)