RUFUS YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the summary denial of the rule 3.850 motion is affirmed without prejudice to resubmit, as the motion failed to meet procedural requirements and the trial court lacked jurisdiction.
Rufus Young appealed the summary denial of his rule 3.850 motion. The motion was filed while his direct appeal of the judgment and sentence was pendin…
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PETERSON, Judge.
Rufus Young appeals the summary denial of his rule 3.850 motion. We affirm the denial without prejudice to Young to resubmit his motion to the trial court.
Our affirmance is based upon two grounds:
1. Young’s motion failed to meet the requirements of rule 3.850, Florida Rules of Criminal Procedure, that it be made under oath and that it state whether there was an appeal from his judgment or sentence and whether a previous post-conviction motion had been filed. Deese v. State, 530 So. 2d 384 (Fla. 1st DCA), rev. dismissed, 534 So. 2d 398 (Fla.1988).
2. Young’s appeal of his judgment and sentence was pending at the time the 3.850 motion was filed; therefore, the trial court was without jurisdiction to entertain the motion. State v. Meneses, 392 So. 2d 905 (Fla.1981); Dueñas v. State, 576 So. 2d 435 (Fla. 2d DCA 1991). The motion was filed on March 5, 1991. Young filed his appeal of the original judgment in 1990, and this court affirmed that judgment on June 4, 1991. Young v. State, 580 So. 2d 770 (Fla. 5th DCA 1991).
AFFIRMED.
DAUKSCH and W. SHARP, JJ„ concur.
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Schofield v. State, 641 So. 2d 172 (Fla. 1st DCA 1994)…ule 3.850 will result in a summary denial of a motion for post-conviction relief due to facial insufficiency of the motion. Truesdale v. State, 627 So. 2d 1344 (Fla. 1st DCA 1993); Raines v. State, 625 So. 2d 104 (Fla. 1st DCA 1993); Young v. State, 585 So. 2d 1184 (Fla. 5th DCA 1991). In the instant case, Schofield’s rule' 3.850 motion does not state whether there was a direct appeal from the judgment and sentence. Neither does Schofield’s motion specify whether any previous motions for post-conviction relief…
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Raines v. State, 625 So. 2d 104 (Fla. 1st DCA 1993)…um mentions that Raines entered guilty pleas but fails to indicate whether the pleas or sentences were pursuant to the terms of a negotiated plea agreement and the contents thereof. Peavy v. State, 599 So. 2d 234 (Fla. 1st DCA 1992); Young v. State, 585 So. 2d 1184 (Fla. 5th DCA 1991); Daniels v. State, 450 So. 2d 601 (Fla. 4th DCA 1984). However, because the circuit court did not rule the motion to be facially insufficient, we affirm with leave for Raines to file an amended motion, if he so desires. AFFIRME…
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van Tassell v. State, 601 So. 2d 318 (Fla. 5th DCA 1992)…PER CURIAM. Richard Van Tassell appeals the summary denial of his rule 3.850 motion. We affirm the denial without prejudice to Van Tassell to resubmit his motion to the trial court with the proper oath. See Young v. State, 585 So. 2d 1184 (Fla. 5th DCA 1991). AFFIRMED. COBB, COWART and DIAMANTIS, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Meneses, 392 So. 2d 905 (Fla. 1981)
- Deese v. State, 530 So. 2d 384 (Fla. 1st DCA 1988)