BRENDA G. WEISMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the trial court properly denied the initial motion for a belated appeal due to lack of an oath, the defendant should be given an opportunity to refile a properly sworn motion.
The defendant pleaded guilty to grand theft and was placed on probation. She failed to file a timely notice of appeal. Her attorney filed a motion for…
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PER CURIAM.
Brenda G. Weisman appeals the trial court’s summary denial of her motion for a belated appeal filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to file a successive legally sufficient motion.
The defendant pleaded guilty to third-degree grand theft. On January 3, 1994, the trial court placed her on five years’ probation and ordered restitution. The defendant did not file a notice of appeal within the thirty-day period as required by Florida Rule of Appellate Procedure 9.140(b)(2).
On February 22, 1994, trial counsel filed a rule 3.850 motion seeking a belated appeal based on ineffective assistance of counsel. The motion alleges that the defendant was unable to contact her attorney because the public defender’s office was moving from one location to another. This motion was not signed or notarized by the defendant. Although trial counsel’s signature is notarized, the motion was not filed “under oath.” See Fla.R.Crim.P. 3.987. The trial court denied relief without an evidentiary hearing.
The trial court properly denied the motion for post-conviction relief because it was not under oath as required by rule 3.850(c). Nevertheless, we conclude that the trial court should have afforded Ms. Weis-man an opportunity to refile a properly sworn motion for belated appeal. See Gilliam v. State, 611 So. 2d 90 (Fla. 2d DCA 1992). Therefore, we affirm without prejudice to defendant filing a legally sufficient motion.
CAMPBELL, A.C.J., and ALTENBERND and QUINCE, JJ., concur.
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Goff v. State, 673 So. 2d 990 (Fla. 4th DCA 1996)…PER CURIAM. We affirm without prejudice to appellant’s right to file a motion in the trial court with the verification required by Florida Rules of Criminal Procedure 3.850 and 3.987 within thirty days. See Weisman v. State, 651 So. 2d 148 (Fla. 2d DCA 1995). The motion in this case does not appear to be facially defective, but for the absence of verification, in its allegations with respect to appellant’s plea agreement, counsel’s representations to the court with respect to same a…
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Anderson v. State, 67 So. 3d 1180 (Fla. 3d DCA 2011)…ally insufficient for failure to meet [*1181] the rule’s pleading requirements, the proper procedure is to dismiss or strike the-motion and allow the defendant at least one opportunity to amend the motion within a reasonable time); Weisman v. State, 651 So. 2d 148, 149 (Fla. 2d DCA 1995) (holding where a defendant files unsworn motion for belated appeal, trial court must afford defendant an opportunity to refile a properly sworn motion). Accordingly, we vacate the trial court’s order and remand for the tria…
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Rupert Desouza v. State, 874 So. 2d 729 (Fla. 3d DCA 2004)…ile a properly sworn post-conviction motion. See Groover v. State, 703 So. 2d 1035, 1038 (Fla.1997)(finding that the “DQailure to meet the oath requirement [under rule 3.850(c)] warrants dismissal of the motion without prejudice”); Weisman v. State, 651 So. 2d 148, 149 (Fla. 2d DCA 1995)(where the trial court denied the defendant’s belated appeal pursuant to rule 3.850 because it was not made under oath, finding that “the trial court should have afforded [the defendant] an opportunity to refile a properly swo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Douglas v. Gilliam, 611 So. 2d 90 (Fla. 2d DCA 1992)