HOWARD C. HICKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A pro se movant should be permitted to file an amended motion to cure a procedural defect, even if the refiling would be beyond the two-year limitation period, provided the original motion was timely filed.
Appellant filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.850 which was dismissed with prejudice for failing to meet the oath r…
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PER CURIAM.
We reverse the order on appeal, which dismissed with prejudice appellant’s pro se motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
The Florida Supreme Court has held that failure to meet the oath requirement of Florida Rule of Criminal Procedure 3.850 warrants dismissal without prejudice. See Anderson v. State, 627 So. 2d 1170 (Fla.1993). Appellant filed his motion three days before the two-year limitation period for filing such motions expired. Any amended motion, filed to cure the procedural defect, would have been untimely. This Court has never directly addressed whether a movant should be permitted to file an amended motion to cure such a defect, when the refiling would be beyond the two-year limitation.
Both the Fifth and Second District Courts of Appeal have addressed this particular situation. Both courts have held that under such circumstances, the motion should be dismissed without prejudice and the movant permitted to file a procedurally sufficient amended motion. See Rivet v. State, 618 So. 2d 377 (Fla. 5th DCA 1993); Morais v. State, 640 So. 2d 1227 (Fla. 2d DCA 1994). The Second District has specifically permitted the movant 30 days within which to refile. See Haughbrook v. State, 658 So. 2d 639 (Fla. 2d DCA 1995).
In other cases, this court has given parties a short period of time to file a procedurally conforming motion, where the original motion was timely filed. See Barfield v. State, 671 So. 2d 820 (Fla. 1st DCA 1996); Melton v. State, 720 So. 2d 577 (Fla. 1st DCA 1998).
We believe movant should be given a short, specific period of time beyond the limitation period to cure the procedural defect. Accordingly, we reverse the order on appeal and remand the matter to the trial court. Appellant shall have 30 days from the date of this court’s mandate within which to file an amended motion which complies with Rule 3.850.
REVERSED.
ERVIN, VAN NORTWICK and BROWNING, JJ., CONCUR.
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Brooks v. State, 816 So. 2d 199 (Fla. 1st DCA 2002)…029. But, in the circumstances of the present case, denial of the petition on account of a pleading deficiency ought not foreclose all possibility of relief. See generally Brown v. State, 802 So. 2d 526, 527-28 (Fla. 1st DCA 2001); Hickey v. State, 763 So. 2d 1213, 1214 (Fla. 1st DCA 2000) (“We believe movant should be given a short, specific period of time beyond the limitation period to cure the procedural defect.”); Brown v. State, 689 So. 2d 1280, 1280 (Fla. 5th DCA 1997) (“We affirm ... without prejudice…
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Pridgeon v. State, 887 So. 2d 427 (Fla. 1st DCA 2004)…this deficiency, which was denied, our affirmance is without prejudice to appellant’s right to file in the trial court an amended motion which is properly sworn to within 30 days of the date on which this court’s mandate issues. See Hickey v. State, 763 So. 2d 1213 (Fla. 1st DCA 2000). AFFIRMED. WOLF, C.J.; WEBSTER and HAWKES, JJ., concur.…
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Mann v. State, 937 So. 2d 722 (Fla. 3d DCA 2006)…owever, I would afford appellant thirty days from the date of this court’s mandate within which to file an amended motion which complies with Florida Rule of Criminal Procedure 3.850, either pro se or with proper representation. See Hickey v. State, 763 So. 2d 1213 (Fla. 1st DCA 2000).…
Authorities Cited
- Anderson v. State, 627 So. 2d 1170 (Fla. 1993)
- Vandervlist v. State, 640 So. 2d 1227 (Fla. 2d DCA 1994)
- Desi Arnez Barfield v. State, 671 So. 2d 820 (Fla. 1st DCA 1996)
- Rivet v. State, 618 So. 2d 377 (Fla. 5th DCA 1993)
- Melton v. State, 720 So. 2d 577 (Fla. 1st DCA 1998)
- Leverett v. State, 658 So. 2d 639 (Fla. 2d DCA 1995)