JOHN J. LAMBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lambert appeals the summary denial of his Rule 3.850 post-conviction relief motion. The court affirms without reaching the merits, finding the motion procedurally deficient for failing to contain the required factual allegations.
The motion is procedurally deficient and does not satisfy Rule 3.850 requirements. The motion fails because it contains no facts in the motion itself, merely refers to a memorandum of law, and attempts an improper incorporation by reference that falls short of the plain and clear requirements of the rule.
[1] A motion for post-conviction relief must be under oath and contain a brief statement of the facts.
[2] A memorandum of law, even if sworn, cannot satisfy the requirement of a factual basis within a motion for post-conviction relief.
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Join FLexlaw to unlock all legal intelligence“Rule 3.850 requires that a motion filed pursuant to it be under oath and contain, among other things, 'a brief statement of the facts.' The principal reason that an oath is required is to discourage a movant from making false statements, by subjecting him to possible prosecution for perjury.”
Establishes the core requirement that Rule 3.850 motions must contain factual allegations and be sworn
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Join FLexlaw to unlock all legal intelligenceLambert was convicted of multiple violent and non-violent felony offenses. He filed a Rule 3.850 motion for post-conviction relief that consisted of a…
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LAWRENCE, Judge.
Lambert appeals the order of the trial court summarily denying his motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. He was convicted of multiple violent and non-violent felony offenses and seeks relief on numerous grounds. We do not have the benefit of the trial court’s reasons for denying the motion, but we have examined the entire record, and conclude that the motion is procedurally deficient. We therefore affirm without reaching the merits of Lambert’s claims.
Lambert’s motion contains no facts that would warrant relief. Those portions of his “form” motion which provide space for a factual basis simply state “SEE AFFIDAVIT OF SUPPORT/MEMORANDUM OF LAW.” Then follows a repeat of the case style, and a twenty-three-page document titled “MEMORANDUM OF LAW.” Lambert attempts in this “MEMORANDUM OF LAW,” to allege a factual basis to support his claim, interlaced with legal argument and numerous citations to legal authorities. The memorandum concludes with a notary public’s certification that it is “sworn to and subscribed before me this ...” and a final verification that Lambert has read the foregoing “Motion For PostConviction Relief.”
Rule 3.850 requires that a motion filed pursuant to it be under oath and contain, among other things, “a brief statement of the facts.” The principal reason that an oath is required is to discourage a movant from making false statements, by subjecting him to possible prosecution for perjury. If Lambert has made a false and material statement in the instant motion, we are of the view that he would have a viable defense to a perjury charge; first, on the ground that no facts were contained in the motion, and secondly, on the ground that a memorandum of law (Lambert’s only document containing any facts) is not required in filing a 3.850 motion, resulting in the absence of the essential element of materiality.
Lambert’s motion also fails in an attempt to incorporate by reference the “memorandum of law.” A request to “SEE AFFIDAVIT OF SUPPORT/MEMORANDUM OF LAW” falls far short of satisfying the plain and clear requirement of rule 3.850.
Lambert’s motion thus is facially deficient in that it fails to allege any significant facts to support the relief requested. The order of the trial court is affirmed.
BOOTH and DAVIS, JJ., concur.
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Schofield v. State, 641 So. 2d 172 (Fla. 1st DCA 1994)…pursuant to it contain a brief statement of the facts and be under oath. “The principal reason that an oath is required is to discourage a movant from making false statements, by subjecting him to possible prosecution for perjury.” Lambert v. State, 631 So. 2d 361, 362 (Fla. 1st DCA 1994). Thus, where the allegations of fact are contained in a document that is not under oath, as is the case with Schofield’s three supplemental doc [*173] uments, the grounds alleged in the motion must be denied. Id.; Jones v. S…
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Linton v. State, 721 So. 2d 743 (Fla. 5th DCA 1998)…of attempted sexual battery on a person less than 12 years of age, a first degree felony. §§ 794.011(2), 777.04(4)(b) & 775.082(3)(b), Fla. Stat. (1995). Because the motion was not properly signed or verified, we would affirm. See Lambert v. State, 631 So. 2d 361 (Fla. 1st DCA 1994). However, in his motion Linton also alleges he received an illegal sentence. Such a claim need not be made under oath and it may be raised at any time. Fla. R.Crim. P. 3.800(a). Linton received a probationary split sentence of…
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Gonzalez v. State, 869 So. 2d 775 (Fla. 5th DCA 2004)…hment to the motion which is labeled a memorandum of law. Thus, technically, the motion is insufficient because it is based on facts contained in an unsworn memorandum of law. See Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003); Lambert v. State, 631 So. 2d 361 (Fla. 1st DCA 1994); Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993). Because we affirm based on a technical, not a substantive ground, our affirmance is without prejudice to file a properly sworn motion containing factual allegations. AFFIRM…
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