ALBERT J. WIDMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed denial of post-conviction relief motion because the motion was unsworn and facially insufficient under Rule 3.850, regardless of the trial court's successive motion rationale.
A post-conviction relief motion under Rule 3.850 that is unsworn is facially insufficient and may be denied without reaching the merits of the claims raised.
[1] A post-conviction relief motion under Rule 3.850 that is unsworn is facially insufficient and may be summarily denied without consideration of the merits.
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Join FLexlaw to unlock all legal intelligence“The motion itself is unsworn and therefore facially insufficient to present a claim under rule 3.850.”
Court's basis for affirming denial of post-conviction relief motion
Widmer filed a Rule 3.850 motion alleging restitution was ordered without inquiry into his ability to pay and claiming ineffective assistance of couns…
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JOANOS, Judge.
Appellant filed a motion for post-conviction relief, alleging that restitution had been ordered without inquiry into his ability to pay, see for example McManamon v. State, 609 So. 2d 91 (Fla. 1st DCA 1992) as well as ineffective assistance of counsel. The trial court apparently denied appellant’s rule 3.850 motion on the theory that it was a successive motion, and that no legal basis had been raised to attack appellant’s plea. We affirm the denial of this motion, but for a different reason. The motion itself is unsworn and therefore facially insufficient to present a claim under rule 3.850. See Black v. State, 610 So. 2d 89 (Fla. 1st DCA 1992).1
The trial court did not abuse its discretion in denying appellant’s motion for appointment of counsel to represent him in the motion for post-conviction relief.
AFFIRMED.
LAWRENCE and DAVIS, JJ., concur. . We note, however, that appellant's previous post-conviction motion was also denied as facially insufficient, thus the present motion is not successive, as any issues raised have yet to be decided on the merits. See Freeman v. State, 589 So. 2d 368 (Fla. 1st DCA 1991). In addition, the trial court did not attach anything to the order to demonstrate that this was a successive motion, or that the claims made were refuted by a plea agreement. In fact, no plea agreement or restitution order appears in the record before this court.
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Denson v. State, 775 So. 2d 288 (Fla. 2000)…itten opinion the circuit court’s ruling. The district court cited Price v. State, 692 So. 2d 971 (Fla. 2d DCA 1997) (defendant is not entitled to repetitive review of specific issue which has already been decided against him), and Johnson v. State, 641 So. 2d 174 (Fla. 1st DCA 1994) (trial court did not err in imposing 100-year sentence for armed robbery with firearm). See Denson v. State, 753 So. 2d 94 (Fla. 2d DCA 1999). This Court denied Denson’s habeas petition because an extraordinary writ petition can…
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Baker v. State, 654 So. 2d 671 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. See Alvarez v. State, 358 So. 2d 10 (Fla.1978); Johnson v. State, 641 So. 2d 174 (Fla. 1st DCA), appeal dismissed, 648 So. 2d 723 (Fla.1994); Battle v. State, 338 So. 2d 1107 (Fla. 3d DCA 1976).…
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Scott v. State, 658 So. 2d 558 (Fla. 1st DCA 1995)…was successive. If, in fact, an earlier motion submitted by Scott was summarily denied as facially insufficient, then the present motion should not be considered to be successive, as any issues have yet to be decided on the merits. Widmer v. State, 641 So. 2d 174 n. 1 (Fla. 1st DCA 1994). As such, we reverse and remand for attachment of those portions of the record conclusively demonstrating Scott is entitled to no relief on the basis that the instant motion is successive, or, alternatively, for an evidentia…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Freeman v. State, 589 So. 2d 368 (Fla. 1st DCA 1991)
- Black v. State, 610 So. 2d 89 (Fla. 1st DCA 1992)
- McMANAMON v. State, 609 So. 2d 91 (Fla. 1st DCA 1992)