MONTY PAVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's summary denial of Pavey's postconviction relief motion under Florida Rule of Criminal Procedure 3.850 because the motion was not properly sworn as required by law. The court allowed Pavey thirty days from the mandate to refile with proper oaths, recognizing the two-year filing deadline had expired pending appeal.
The trial court properly denied the motion because the second document failed to contain an actual oath signed by Pavey. A mere acknowledgment that an oath was taken is insufficient; the rule requires the movant to affirmatively state in the document itself that factual allegations are true and correct.
[1] A motion for postconviction relief must be properly sworn to by the movant.
[2] A document styled as a motion or petition that contains only factual allegations and an acknowledgment of an oath, but not the oath itself, is insufficient to satisfy the…
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Join FLexlaw to unlock all legal intelligence“a statement in the second document that Pavey took an oath is insufficient. The rule requires Pavey to affirmatively state that his factual allegations are true and correct.”
Establishes the core holding that Rule 3.850 requires an actual oath in the document, not merely an acknowledgment that one was taken
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Join FLexlaw to unlock all legal intelligencePavey filed a postconviction relief motion consisting of two documents. The first document, styled 'Motion for Post-Conviction Relief,' contained a pr…
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PER CURIAM.
We affirm the summary denial of Monty Pavey’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion on the basis that it was not properly sworn, but gave Pavey leave to file a motion in conformity with the rules. Pavey’s motion consists of two separate documents, one styled a “Motion for Post-Conviction Relief’ and the other a “Motion for Post-Conviction Relief and in the Alternative Petition for Writ of Habeas Corpus.” The second document appears to be nothing more than a memorandum containing detailed factual allegations in support of Pavey’s claims notwithstanding the fact that it has been styled as a motion or petition. The first document does contain a properly signed and notarized oath. However, the second document does not contain an oath signed by Pavey; it contains only an acknowledgment which states that Pavey took an oath.
In light of Scott v. State, 464 So. 2d 1171 (Fla.1985), a statement in the second document that Pavey took an oath is insufficient. The rule requires Pavey to affirmatively state that his factual allegations are true and correct. Without the actual oath being set forth in the second document, we do not know whether or not Pavey’s oath met this requirement. The trial court was correct to deny Pavey’s motion even though one document out of two did contain a proper oath. See Brown v. State, 620 So. 2d 1076 (Fla. 2d DCA 1993); Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993).
Accordingly, we affirm the trial court’s order of dismissal, but, as the trial court did, do so without prejudice to Pavey to refile the motion and memorandum of law with proper oaths. Since it appears that the two-year time limit for Pavey to file a rule 3.850 motion has expired during the pendency of this appeal, Pavey shall have thirty days from the date of the mandate following this opinion to file a corrected motion and memorandum of law. See Haughbrook v. State, 658 So. 2d 639 (Fla. 2d DCA 1995); Miller v. State, 617 So. 2d 332 (Fla. 2d DCA 1993).
Affirmed.
CAMPBELL, A.C.J., and PATTERSON and CASANUEVA, JJ., concur.
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Fla. Pub. Emps. Council 79 v. Dep't OF Child. & Families & Jeb Bush, 745 So. 2d 487 (Fla. 1st DCA 1999)…l constitutionality of a statute cannot be decided in an administrative proceeding,” a party must exhaust available administrative remedies with respect to an as-applied constitutional challenge. See Chrysler v. Florida Department of Highway Safety, 720 So. 2d 563, 567-568 (Fla. 1st DCA 1998). We conclude that Count II of appellants’ amended complaint alleges a facial challenge to the constitutionality of the employment screening provisions set forth in Chapter 435 of the Florida Statutes. The record before…
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Bernal v. State, 768 So. 2d 467 (Fla. 2d DCA 2000)…f appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.140(j). This court will consider as timely filed any such petition filed within 30 days from the date of the issuance of the mandate in this case. See, e.g., Pavey v. State, 720 So. 2d 563 [*468] (Fla. 2d DCA 1998); Ashby v. State, 752 So. 2d 698 (Fla. 2d DCA 2000). Affirmed. CAMPBELL, A.C.J., and NORTHCUTT and DAVIS, JJ., Concur.…
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Toler v. State, 818 So. 2d 639 (Fla. 1st DCA 2002)…ED. The trial court’s summary dismissal of the appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 without prejudice to refile a motion which conforms with the rule is affirmed. See Pavey v. State, 720 So. 2d 563, 563 (Fla. 2d DCA 1998); Groves v. State, 668 So. 2d 1089, 1089 (Fla. 1st DCA 1996); and Adlington v. State, 599 So. 2d 1047, 1047 (Fla. 4th DCA 1992). BARFIELD, MINER and POLSTON, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scott v. State, 464 So. 2d 1171 (Fla. 1985)
- Jones v. State, 617 So. 2d 332 (Fla. 4th DCA 1993)
- Anfield v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Leverett v. State, 658 So. 2d 639 (Fla. 2d DCA 1995)
- Brown v. State, 620 So. 2d 1076 (Fla. 2d DCA 1993)