TIMOTHY THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the trial court properly denied the motion as legally insufficient for non-compliance with rule 3.850, the dismissal should have been with leave to amend.
[1] A motion to vacate a plea, alleging involuntary plea based on incorrect advice, may be treated as a motion for post-conviction relief under rule 3.850.
[2] A motion for post-conviction relief is legally insufficient if it fails to comply with rule 3.850(c)(3) and (4) regarding prior motions and reasons for not raising claims…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a pro se motion to withdraw his plea, claiming it was involuntary due to incorrect advice. The trial court treated this as a motion to…
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PARIENTE, Judge.
Appellant, who is represented by counsel on appeal, filed a pro se motion to withdraw his plea, claiming that the plea was involuntary because it was “based upon incorrect and misleading advice as to the consequences of entering” the plea. The trial court treated appellant’s motion as a motion to vacate under rule 3.850 and then denied the motion as being legally insufficient for failure to comply with rule 3.850(c)(3) and (4). These subsections of the rule require that the motion include whether a previous post-conviction motion was filed and, if so, the reason that the claim in the present motion was not raised in the former motion.
We disagree with appellant’s argument that the trial court should have considered the merits of the motion despite appellant’s noncompliance with these subsections of rule 3.850. Compare Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993) (failure of notary section of motion to comport with technical requirements of notary statute not basis for summary denial of 3.850 relief) with Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995) (trial court properly denied motion as legally insufficient where it neither was under oath nor included requisite contents of rule 3.850(c)), review denied, 668 So. 2d 602 (Fla.1996). We agree, however, that the trial court’s order of dismissal should have been with leave to file an amended motion conforming to the requirements of rule 3.850(c). See Brown; Burns v. State, 651 So. 2d 813 (Fla. 5th DCA 1995); Williams v. State, 580 So. 2d 624 (Fla. 1st DCA 1991).
Accordingly, we affirm the trial court’s order of dismissal. Because the allegations contained in appellant’s motion are otherwise legally sufficient, our affirmance is without prejudice to appellant’s refiling his motion for post-conviction relief in compliance with the requirements of rule 3.850(c) within thirty days of this court’s mandate. See Goff v. State, 673 So. 2d 990 (Fla. 4th DCA 1996); Reese v. State, 518 So. 2d 473 (Fla. 4th DCA 1988); Morais v. State, 640 So. 2d 1227 (Fla. 2d DCA 1994).
STEVENSON and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brooks v. State, 816 So. 2d 199 (Fla. 1st DCA 2002)…tation period to cure the procedural defect.”); Brown v. State, 689 So. 2d 1280, 1280 (Fla. 5th DCA 1997) (“We affirm ... without prejudice to Brown to file, within 30 days of this opinion, a rale 3.850 motion raising this issue.”); Thomas v. State, 686 So. 2d 699, 700 (Fla. 4th DCA 1996) (affirming “the trial court’s order of dismissal [but holding that it] should have been with leave to file an amended motion conforming to [certain pleading] requirements”).…
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Steele v. State, 705 So. 2d 1058 (Fla. 4th DCA 1998)…uriam affirmed, without prejudice to appellant’s re-filing with the trial court, within thirty (30) days after the date of this opinion, his motion for post-conviction relief and accompanying memorandum of law with proper oaths. See Thomas v. State, 686 So. 2d 699 (Fla. 4th DCA 1996); McBride v. State, 524 So. 2d 1113 (Fla. 4th DCA 1988); Daniels v. State, 450 So. 2d 601 (Fla. 4th DCA 1984). GLICKSTEIN, WARNER and POLEN, JJ., concur.…
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Woods v. State, 740 So. 2d 600 (Fla. 4th DCA 1999)…that petition. We affirm the trial court’s denial of the post-conviction relief motion, since the motion was facially insufficient, in that appellant did not indicate whether any previous post-conviction motions had been filed. See Thomas v. State, 686 So. 2d 699 (Fla. 4th DCA 1996). We note that the denial is without prejudice to appellant filing an amended motion conforming to [*601] the requirements of Florida Rule of Criminal Procedure 3.850(c). GUNTHER, POLEN and GROSS, JJ., concur.…
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 (11 total)
- Vandervlist v. State, 640 So. 2d 1227 (Fla. 2d DCA 1994)
- State v. Harris, 661 So. 2d 95 (Fla. 4th DCA 1995)
- Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995)
- Burns v. State, 651 So. 2d 813 (Fla. 5th DCA 1995)
- Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993)
- LEE v. State, 673 So. 2d 990 (Fla. 4th DCA 1996)
- Goff v. State, 673 So. 2d 990 (Fla. 4th DCA 1996)
- Reese v. State, 518 So. 2d 473 (Fla. 4th DCA 1988)
- Rowan v. State, 518 So. 2d 473 (Fla. 4th DCA 1988)
- Brown v. Brown, 580 So. 2d 624 (Fla. 1st DCA 1991)