JOSE A. GONZALEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion for post-conviction relief is insufficient if its factual allegations are contained in an unsworn memorandum of law rather than the motion itself.
Gonzalez filed a motion for post-conviction relief, but the factual allegations supporting his claim were in an attached memorandum of law, not the mo…
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We affirm the trial court’s dismissal of Gonzalez’ motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The dismissal is without prejudice to Gonzalez to refile a motion containing sworn, factual allegations. See Van Aernam v. State, 715 So. 2d 1143 (Fla. 5th DCA 1998). Gonzalez signed his motion below the following statement:
Under penalties of perjury, I declare that I have read the foregoing motion and that the facts as stated in it are true.
This affirmation would have been sufficient had the motion contained factual allegations upon which Gonzalez relied to obtain collateral relief.
However, he did not state in the motion the facts upon which he rests his case for collateral relief. The facts are stated in an attachment to the motion which is labeled a memorandum of law. Thus, technically, the motion is insufficient because it is based on facts contained in an unsworn memorandum of law. See Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003); Lambert v. State, 631 So. 2d 361 (Fla. 1st DCA 1994); Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993).
Because we affirm based on a technical, not a substantive ground, our affirmance is without prejudice to file a properly sworn motion containing factual allegations.
AFFIRMED.
PETERSON and TORPY, JJ., concur.
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Citator
Cited By
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Cosby v. State, 911 So. 2d 275 (Fla. 5th DCA 2005)…d concluded that he read the facts and they are true under penalty of perjury. This would be sufficient if all of the facts relied upon were contained in the affidavit and the petition incorporated it by reference. Compare, [*276] Gonzalez v. State, 869 So. 2d 775 (Fla. 5th DCA 2004) (sworn Rule 3.850 motion did not contain facts; unsworn memorandum of law attached to motion which stated facts insufficient to cure motion). However, in this case, the petition itself contains other facts not present in the “aff…
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Fletcher v. State, 949 So. 2d 328 (Fla. 5th DCA 2007)…rial court’s decision because the motion was not made under oath as required. See Fla. R.Crim. P. 3.850(c). Thus, we affirm without prejudice for Fletcher to file a new, properly sworn motion that contains factual allegations. See Gonzalez v. State, 869 So. 2d 775 (Fla. 5th DCA 2004); Creel v. State, 769 So. 2d 450 (Fla. 4th DCA 2000); Linton v. State, 721 So. 2d 743 (Fla. 5th DCA 1998); Van Aernam v. State, 715 So. 2d 1143 (Fla. 5th DCA 1998); Saba v. State, 677 So. 2d 41 (Fla. 5th DCA 1996). AFFIRMED. T…
Authorities Cited
- Lambert v. State, 631 So. 2d 361 (Fla. 1st DCA 1994)
- Anfield v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003)
- Hillengas v. State, 715 So. 2d 1143 (Fla. 5th DCA 1998)