HENRY LINCOLN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court properly denied the motion without prejudice because it lacked a proper oath, and the trial court lacked jurisdiction to rule on the motion while a direct appeal was pending.
Defendant appealed the denial of his rule 3.850 motion without prejudice, which was denied for facial insufficiency due to a lack of a proper oath. Th…
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PLEUS, J.
Henry Lincoln Smith has appealed the denial of his rule 3.850 motion without prejudice. The trial court found that defendant’s motion was facially insufficient. The motion states that it was sworn and subscribed by an Orange County Corrections officer pursuant to section 117.10, Florida Statutes, which authorizes correctional officers to administer oaths. In this case there is no statement that the facts in the motion are true and correct. Therefore, the trial court’s order must be affirmed. See, e.g., Katwaroo v. State, 837 So. 2d 612 (Fla. 5th DCA 2003).
This court’s records also establish that the defendant is appealing the revocation of probation entered on July 9, 2003. This is also the subject of his rule 3.850 motion. Although the appeal was dismissed on October 22, 2003, for lack of any order of insolvency, it was reinstated on November 3, 2003. (Case No. 5D03-2896). The trial court therefore lacked jurisdiction to rule on the motion during the pendency of Smith’s direct appeal. See Daniels v. State, 712 So. 2d 765 (Fla.1998); Hall v. State, 697 So. 2d 237 (Fla. 5th DCA 1997).
In Daniels, the supreme court held that a ruling on the merits of a rule 3.850 motion when a direct appeal is pending is a nullity and therefore the appellate court should dismiss an appeal of such an order, rather than affirming. See also, Walk v. State, 707 So. 2d 933 (Fla. 5th DCA 1998). However, in this case the trial court did not rule on the merits, but dismissed without prejudice. Our affirmance of the trial court is without prejudice to the defendant filing a proper motion with a sufficient oath after the mandate in Case No. 5D03-2896 has been rendered.
AFFIRMED WITHOUT PREJUDICE.
PETERSON and THOMPSON, JJ„ concur.
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Monfiston v. State, 54 So. 3d 632 (Fla. 4th DCA 2011)…within two years of the date that the Supreme Court of Florida disposed of his petition for review of this court’s decision on direct appeal. As such, his motion was timely filed. See Ortiz v. State, 4 So. 3d 794 (Fla. 4th DCA 2009); Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004); Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003); Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001). Accordingly, we reverse and remand for the circuit court to entertain appellant’s motion for postconviction relief.…
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Merrill v. State, 909 So. 2d 519 (Fla. 5th DCA 2005)…; Hall v. State, 697 So. 2d 237 (Fla. 5th DCA 1997) (same). Accordingly, we VACATE the order and REMAND to the trial court for further consideration because the mandate in Merrill’s direct appeal has disposed of his plenary appeal. Smith v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004). PLEUS, C.J. and PETERSON, J., concur. . Merrill appealed his conviction and sentence for carjacking in Fifth. District Court of Appeal case number 5D04-2899 on 26 August 2004. This court per curiam affirmed in Merrill v. St…
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Maxwell v. State, 888 So. 2d 152 (Fla. 5th DCA 2004)…post-conviction motion on March 9, 2004. As the district court of appeal issued a written opinion in the defendant’s case, his judgment and sentence did not become final until the proceedings in the supreme court were concluded. In Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004), we held that if the supreme court has jurisdiction to review a district court decision, the two-year period under Rule 3.850 does not begin to run until the proceedings in the supreme court have concluded. See also Perkins v. St…
Authorities Cited
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)
- Hall v. State, 697 So. 2d 237 (Fla. 5th DCA 1997)
- Walk v. State, 707 So. 2d 933 (Fla. 5th DCA 1998)
- Gray v. State, 837 So. 2d 612 (Fla. 5th DCA 2003)
- Deryck Katwaroo v. State, 837 So. 2d 612 (Fla. 5th DCA 2003)