JAMES J. MCWILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1985-05-24
No. 85-575
RYDER, C.J., and LEHAN and FRANK, JJ., concur.
469 So. 2d 229 Florida District Court of Appeal, Second District (1985) Positive Treatment
Cited by 4 cases
Topics
Florida Rule Of Criminal Procedure 3.850 Postconviction Relief

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Opinion of the Court
PER CURIAM.

[*230] PER CURIAM.

The trial court did not err in summarily denying appellant’s motion for post-conviction relief. Appellant’s motion was facially insufficient because appellant failed to make the motion under oath and state whether he had taken an appeal as required under Florida Rule of Criminal Procedure 3.850. Baker v. State, 448 So. 2d 36 (Fla. 1st DCA 1984).

However, we cannot consider the correctness of the judge’s ruling which found that appellant was entitled to eighty days of jail credit time because the judge failed to attach a copy of the portion of the record which conclusively shows appellant is not entitled to relief. Fla.R.Crim.P. 3.850. Therefore, we affirm on the basis of facial insufficiency without prejudice to allow appellant to file a sworn motion. Scott v. State, 464 So. 2d 1171, 1172 (Fla.1985).

Affirmed without prejudice to file a proper motion pursuant to Florida Rule of Criminal Procedure 3.850.

RYDER, C.J., and LEHAN and FRANK, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Thomas v. State, 611 So. 2d 600 (Fla. 2d DCA 1993)
    …7 So. 2d 605 (Fla. 1st DCA 1990). The Fifth District has expressly recognized that either motion may be appropriate. See Sanders. Depending on the circumstances, this court has also resolved jail credit issues under either rule. McWilliams v. State, 469 So. 2d 229 (Fla. 2d DCA 1985) (using rule 3.850); Jolly v. State, 604 So. 2d 577 (Fla. 2d DCA 1992) (using rule 3.800). An explanation seems in order. If the defendant maintains that the issue of jail credit is a matter that can be determined by the trial cou…
  • Ross v. State, 598 So. 2d 148 (Fla. 2d DCA 1992)
    …iness of his plea is facially sufficient, the motion did not contain an oath. See Scott v. State, 464 So. 2d 1171 (Fla.1985). We therefore affirm the summary denial without prejudice to the filing of a properly sworn motion. See McWilliams v. State, 469 So. 2d 229 (Fla. 2d DCA 1985). LEHAN, Acting C.J., and FRANK and PATTERSON, JJ., concur.…

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