ALFREDO M. THEOC, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a motion for postconviction relief is properly sworn when it uses the unnotarized oath form authorized by statute and Florida Supreme Court precedent.
The defendant filed a motion for postconviction relief using an unnotarized oath. The State argued the motion should be denied for failing to comply w…
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COPE, J.
Alfredo M. Theoc appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The court ruled that defendant-appellant Theoc had failed to swear to the motion. As the court erred on this point, we reverse.
At the end of the Rule 3.850 motion, the defendant executed the “Unnotar-ized Oath” set forth in Florida Rule of Criminal Procedure 3.987, stating, “Under penalties of perjury, I declare that I have read the foregoing Motion for Post Conviction Relief and that the facts stated in it are true.”
The State filed a response arguing that the motion should be denied because it failed to comply with the oath requirement of Rule 3.850. The trial court accepted this argument and denied the motion without prejudice.
The State overlooked the fact that section 92.525, Florida Statutes (2001), allows an unnotarized oath, in the form used by the defendant in this case. The Florida Supreme Court has specifically authorized this procedure, State v. Shearer, 628 So. 2d 1102 (Fla.1993), and the standard form of Rule 3.850 motion now gives an inmate the option of executing a notarized oath, or an unnotarized oath. Fla. R.Crim. P. 3.987. Under either alternative, the motion is sworn under penalties of perjury. Shearer, 628 So. 2d at 1103.
The State’s reliance on Anderson v. State, 627 So. 2d 1170 (Fla.1993), was misplaced. That case involved a Rule 3.850 motion which contained no oath at all. In the present case, the defendant properly complied with the oath requirement.
Since the motion was properly sworn to, we reverse the order now under review and remand the cause to the trial court for further consideration. We express no opinion on the merits of the defendant’s motion.
Reversed and remanded for further proceedings consistent herewith.
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J.S.L. Constr. Co. v. Eliyahu Levy and Ramona Levy, 994 So. 2d 394 (Fla. 3d DCA 2008)…hat the facts stated in it are true”); Battle v. Gentry, 898 So. 2d 263, 264 (Fla. 1st DCA 2005) (concluding that “a statement in which [a] claimant affirmed that the information contained on [a] form was true,” constitutes an oath); Theoc v. State, 832 So. 2d 261, 262 (Fla. 3d DCA 2002) (confirming that a statement made “under penalties of perjury” and declared to be based on facts represented as being true, is an unnotarized oath authorized by section 92.525); see also Fla. R.Crim. P. 3.987 (recognizing two…
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Medina v. State, 129 So. 3d 1159 (Fla. 3d DCA 2014)…ally approved by Florida Rule of Criminal Procedure 3.987 (the form adopted by the Florida Supreme Court for use in motions filed under rule 3.850). See also Fla. R. App. P. 9.420(a)(2)2; State v. Shearer, 628 So. 2d 1102 (Fla.1993); Theoc v. State, 832 So. 2d 261 (Fla. 3d DCA 2002).3 Further, the trial court incorrectly found that the certificate of service was not signed under penalty of perjury. As described earlier, the final paragraph of the May Motion stated that, under penalty of perjury, Medina signed…
Authorities Cited
- Anderson v. State, 627 So. 2d 1170 (Fla. 1993)
- State v. Shearer, 628 So. 2d 1102 (Fla. 1993)