DANIEL COURSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sworn affidavit attached to a supplemental memorandum, even if not properly incorporated into the main motion, is sufficient to require an evidentiary hearing on a motion for post-conviction relief.
Courson filed a motion for post-conviction relief seeking belated appeals for sentences imposed in two cases. The trial court denied the motion, findi…
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W. SHARP, Judge.
Courson appeals the summary denial of his motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief. He seeks belated appeals for sentences imposed in two criminal cases. He entered guilty pleas in both cases, was adjudicated an habitual offender, and was sentenced to ten years and twenty-five years, respectively. In his motion, Courson concludes he is entitled to belated direct appeals. We reverse.
The trial court denied the 3.850 motion because Courson failed to alleged in his sworn pleading that he instructed his attorney to file the appeals within the time permitted under Florida Rule of Criminal Procedure 3.850(g). In Courson’s supplemental memorandum, which was filed with his motion, these missing allegations are sufficiently made, but the memorandum does not contain a proper oath that the alleged facts are true and correct. The trial court therefore disregarded the memorandum, and did not hold a hearing to determine the veracity of the facts asserted.
However, the appendix to the memorandum does contain a sworn affidavit prepared by Courson in which he alleges that on the sentencing date in each case, he requested defense counsel to appeal the sentence imposed. These sworn allegations should have been included in the 3.850 motion, and the trial court cannot be faulted for overlooking the affidavit. Nevertheless, we conclude that the sworn allegations attached to the memorandum are sufficient to require further proceedings. We therefore reverse the order denying relief and remand for an evidentiary hearing on the ineffective assistance of counsel claim.
REVERSED and REMANDED.
GOSHORN and GRIFFIN, JJ., concur.
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State v. Trowell, 739 So. 2d 77 (Fla. 1999)…2d 144, 145 (Fla. 5th DCA 1998) (finding petition for belated appeal sufficient if it alleges that the attorney failed to file the appeal as requested, but not specifying whether the defendant had pleaded guilty or gone to trial); Courson v. State, 652 So. 2d 512, 512 (Fla. 5th DCA 1995) (remanding for evidentiary hearing on ineffective assistance of counsel claim where defendant who pleaded guilty alleged that counsel failed to file notice of appeal as requested). We begin our analysis with Baggett, in whi…
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Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)…(Fla. 1st DCA 1995); Owens v. State, 643 So. 2d 105 (Fla. 1st DCA 1994); Clayton v. State, 635 So. 2d 48 (Fla. 1st DCA 1994); Hudson v. State, 596 So. 2d 1213 (Fla. 1st DCA 1992); Short v. State, 596 So. 2d 502 (Fla. 1st DCA 1992); Courson v. State, 652 So. 2d 512 (Fla. 5th DCA 1995); Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993), on remand, 643 So. 2d 677 (Fla. 4th DCA 1994); Viqueira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992). To the extent that Thomas requires a defendant to state in a rule 3.850 moti…
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Tavares Antonio Carter v. State, 668 So. 2d 294 (Fla. 1st DCA 1996)…for appeal, and that counsel failed to honor it.” Because Carter verified that the facts in his motion were true and correct, these allegations sufficiently raised the issue. See Myers v. State, 539 So. 2d 525 (Fla. 1st DCA 1989); Courson v. State, 652 So. 2d 512 (Fla. 5th DCA 1995). REVERSED and REMANDED for further proceedings. ERVIN, MINER, and WEBSTER, JJ.…
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