JOSEPH RAINES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of post-conviction relief where defendant challenged sentencing disparity and lack of written reasons for departure sentence, but found the motion facially insufficient while allowing amendment.
A post-conviction relief motion that is facially insufficient due to missing procedural elements may be affirmed while granting leave to amend.
[1] A post-conviction relief motion under Florida Rule of Criminal Procedure 3.850 must comply with procedural requirements including sworn allegations, disclosure of plea ag…
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Join FLexlaw to unlock all legal intelligenceJoseph Raines and a co-defendant both entered guilty pleas to charges. Raines received a 35-year sentence while his co-defendant received 28 years, de…
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PER CURIAM.
Joseph Raines appeals an order denying his motion for post conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. The motion raises two grounds for relief: (1) the trial court erred in sentencing Raines to 35 years in prison while sentencing his co-defendant, who also entered' guilty pleas to the charges, to only 28 years, although the recommended guidelines sentence was also 22 to 27 years; and (2) the trial court erred in imposing a departure sentence without providing a written reason for doing so. The motion refers to an attached Memorandum of Law, which includes a statement of facts and arguments in support of the two grounds for relief.
The motion is facially insufficient in several respects. Among other things, it does not state whether there was an appeal from Raines’s judgment or sentences; it incorporates the memorandum of law containing the factual allegations that form the basis of the relief sought, but which memorandum is not under oath; and the memorandum 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.
AFFIRMED.
ZEHMER, C.J., and BOOTH and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schofield v. State, 641 So. 2d 172 (Fla. 1st DCA 1994)…many.” A failure to fulfill these requirements of rule 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 wh…
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Melton v. State, 720 So. 2d 577 (Fla. 1st DCA 1998)…ould the defendant insist upon his right to a trial). However, the rehearing motion was not under oath, and therefore the trial court was not required to consider the additional facts raised therein to support that claim. See, e.g., Raines v. State, 625 So. 2d 104 (Fla. 1st DCA 1993); Peavy v. State, 599 So. 2d 234 (Fla. 1st DCA 1992) (posteonvietion claims are facially deficient when factual allegations forming the basis of the relief sought are set forth in an accompanying memorandum of law which is not und…
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Terence Jackson v. State, 694 So. 2d 145 (Fla. 1st DCA 1997)…PER CURIAM. AFFIRMED. See Raines v. State, 625 So. 2d 104 (Fla. 1st DCA 1993). MINER, LAWRENCE and PADOVANO, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klein v. Advance Mortg. Corp., 450 So. 2d 601 (Fla. 4th DCA 1984)
- Young v. State, 585 So. 2d 1184 (Fla. 5th DCA 1991)
- Peavy v. State, 599 So. 2d 234 (Fla. 1st DCA 1992)