MARK MURRAY FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Freeman appeals the trial court's summary denial of his postconviction motion for ineffective assistance of counsel. The court affirmed the denial of the original motion but found the supplemental motion presented a prima facie case, though it was properly struck for improper oath language; Freeman may refile with a proper oath.
The trial court properly granted the state's motion to strike the supplemental motion because the oath was insufficient under Florida law, which requires affidavits to reflect personal knowledge rather than merely the best knowledge and belief of the affiant. However, the supplemental motion presented a prima facie showing of entitlement to relief, and Freeman may refile with a proper oath.
[1] A supplemental motion for postconviction relief is properly stricken when it is not sworn to with the requisite oath, even if the affiant attests to the truth of the fact…
[2] A defendant's postconviction motion may be denied on the merits if the allegations are facially insufficient or refuted by the record.
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Join FLexlaw to unlock all legal intelligence“the supplemental motion presents a prima facie showing of entitlement to relief”
Court's finding that despite the improper oath, Freeman's supplemental motion had merit on the substantive issues
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Join FLexlaw to unlock all legal intelligenceFreeman filed a postconviction motion alleging four instances of ineffective assistance of counsel. Before the trial court could decide the motion, Fr…
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PER CURIAM.
Mark Freeman appeals the summary denial of his motion for postconviction relief.
The procedural history of Freeman’s motion is rather convoluted. Initially Freeman alleged four separate instances of what he considered ineffective assistance of counsel. Before the trial court could decide that motion on its merits, a supplement raising one additional issue was filed. The order denying Freeman’s motion did not address this extra issue, a fact pointed out by Freeman on rehearing. Ordered to respond, the state instead moved to strike the supplement as improperly sworn. The motion to strike was granted, prompting this appeal.1
We first consider the trial court’s ruling regarding the four issues raised in the original motion, and find that all four are either facially insufficient or refuted by the record attachments provided by the trial court. However, we are of the opinion the supplemental motion presents a prima facie showing of entitlement to relief. The oath is attacked because it states that the facts are true “to the best of [Freeman’s] knowledge and belief.” This is insufficient. Scott v. State, 464 So. 2d 1171 (Fla.1985). In Gorham v. State, 494 So. 2d 211 (Fla.1986), the supreme court explained its position in Scott; Gorham, much like the present case, involved a defendant who disavowed personal knowledge of the facts he was asserting because they were uncovered through an attorney and investigator. The supreme court distinguished “personal” knowledge, which was imputed to Gorham (and so could be imputed to Freeman) from “firsthand” knowledge. Accordingly, we are unable to find that the circuit court erred in granting the state’s motion to strike. Our holding is without prejudice to Freeman to refile the supplemental motion with the proper oath included. Cf. Williams v. State, 561 So. 2d 1349 (Fla. 1st DCA 1990).2
Affirmed.
RYDER, A.C.J., and SCHOONOVER and HAUL, JJ., concur. . Further complicating the matter, Freeman did not timely appeal. However, this court granted belated appellate review on the authority of State ex ret Shevin v. District Court of Appeal, Third District, 316 So. 2d 50 (Fla.1975).
. In so holding we acknowledge our prior disapproval of piecemeal 3.850 filings. Ferro v. State, 510 So. 2d 339 (Fla. 2d DCA 1987). It is not possible to determine from the record presently before us whether the state was prejudiced by Freeman's late-filed supplement. After remand the trial court may consider any allegations of prejudice that may be raised before ruling on the merits of the supplemental motion.
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McCONN v. State, 708 So. 2d 308 (Fla. 2d DCA 1998)…st-minute supplementation of 3.850 motions. Instead, the courts have a right to expect that pleadings will not be filed, whether by lawyers or lay persons, until sufficiently and completely drafted.” 510 So. 2d at 340. However, in Freeman v. State, 629 So. 2d 276 (Fla. 2d DCA 1993), the defendant filed a motion alleging four instances of ineffective assistance of counsel. Prior to a ruling on the motion, he filed a supplement to the motion which raised an additional issue. The trial court’s order denying rel…
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Bailey v. State, 845 So. 2d 259 (Fla. 2d DCA 2003)…d have been raised on direct appeal. Accordingly, the court dismissed the motion without prejudice. We affirm without prejudice to any right Bailey has to file a sworn, facial [*261] ly sufficient motion pursuant to rule 3.850. See Freeman v. State, 629 So. 2d 276 (Fla. 2d DCA 1993). Because it appears that the two-year time limit for Bailey to file a rule 3.850 motion has nearly expired during the pendency of this appeal, Bailey shall have thirty days from the date of the mandate following this opinion in wh…
Authorities Cited
- Scott v. State, 464 So. 2d 1171 (Fla. 1985)
- State of Fla. ex rel. Robert L. Shevin v. The Dist. Court OF Appeal of Fla., 316 So. 2d 50 (Fla. 1975)
- Gorham v. State, 494 So. 2d 211 (Fla. 1986)
- Williams v. State, 561 So. 2d 1349 (Fla. 1st DCA 1990)
- Alfio Ferro v. State, 510 So. 2d 339 (Fla. 2d DCA 1987)