RANDALL PINDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the summary denial of Pinder's postconviction motion based on a procedural defect—an improper oath—rather than the trial court's failure to hold an evidentiary hearing on ineffective assistance of counsel claims.
A postconviction motion lacking a properly notarized oath in the form required by Florida Statutes § 92.525 and Florida Rule of Criminal Procedure 3.987 may be summarily denied without an evidentiary hearing.
[1] A postconviction motion that does not include an oath in the form prescribed by Florida Statutes § 92.525 and Florida Rule of Criminal Procedure 3.987 may be summarily de…
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Join FLexlaw to unlock all legal intelligenceRandall Pinder appealed the summary denial of his postconviction motion alleging that his trial counsel failed to preserve an issue for appeal and inv…
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PER CURIAM.
Randall Pinder appeals the summary denial of his postconviction motion in which he complained that his trial counsel failed to preserve an issue for appeal and invited prosecutorial misconduct by his own actions. The relevant facts are set forth in the opinion issued in Pinder’s direct appeal. Pinder v. State, 738 So. 2d 428 (Fla. 4th DCA 1999). The trial court denied the motion, concluding that counsel’s acts were part of his trial strategy, but did not hold an evidentiary hearing before making that determination. Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995)(an evidentiary hearing is usually required to determine whether the act or omission complained of was a reasonable tactical tactic).
We affirm the denial order for a different reason. The unnotarized oath that Pinder used in his motion was not in the form set forth in Florida Statutes § 92.525 and Florida Rule of Criminal Procedure 3.987. Affirmance is without prejudice to appellant to file a new motion that includes a proper oath. See Young v. State, 786 So. 2d 641 (Fla. 4th DCA 2001). Because the time for seeking postconviction relief has expired, the new motion must be filed no later than thirty days after the issuance of the mandate in this appeal.
AFFIRMED.
POLEN, C.J., STONE and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995)
- Pinder v. State, 738 So. 2d 428 (Fla. 4th DCA 1999)
- Young v. State, 786 So. 2d 641 (Fla. 4th DCA 2001)