JOHN ARMEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a postconviction relief motion properly sworn to using an unnotarized oath, as permitted by statute and case law, should not have been dismissed.
John Armey filed a motion for postconviction relief under Rule 3.850, using an unnotarized oath. The circuit court dismissed the motion for failing to…
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CASANUEVA, Judge.
John Armey appeals an order dismissing his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The circuit court found that Armey had failed to properly swear to the motion and dismissed it without prejudice for Ar-mey to refile “a motion which complies with the requirements of Florida Rule of Criminal Procedure 3.850.” As the circuit erred on this point, we reverse.
At the end of his rule 3.850 motion, Armey executed the same “unnotarized 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 and that [all] the facts stated in it are true.” The circuit court overlooked the fact that section 92.525(2), Florida Statutes (2001), allows an unnotar-ized oath, in the form used by the defendant in this case. The Florida Supreme Court specifically authorized this procedure in State v. Shearer, 628 So. 2d 1102 (Fla.1993). The standard form of the 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.
Because Armey’s motion was properly sworn to, we reverse the order of dismissal and remand to the circuit court for further consideration. We express no opinion on the merits of Armey’s motion.
Reversed and remanded.
NORTHCUTT and COVINGTON, JJ, Concur.
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Williams v. State, 884 So. 2d 374 (Fla. 2d DCA 2004)…ned the unnotarized oath at the end of the document. This unnotarized oath was added to the standard form by the supreme court in 1993. See State v. Shearer, 628 So. 2d 1102 (Fla.1993). Thus, the State’s motion was without merit. See Armey v. State, 880 So. 2d 1269 (Fla. 2d DCA 2004); Patmore v. State, 735 So. 2d 521 (Fla. 2d DCA 1999). To further complicate matters, it is well established that a motion that is actually unsworn should not be stricken, but should be dismissed without prejudice. See Morais v.…
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Raley v. State, 884 So. 2d 501 (Fla. 5th DCA 2004)…orida Statutes (2008), allows an unsworn oath to be used for these purposes, an oath not acknowledging that it is made subject to the laws governing perjury is insufficient. See Young v. State, 786 So. 2d 641 (Fla. 4th DCA 2001); Cf. Armey v. State, 880 So. 2d 1269 (Fla. 2d DCA Sept.1, 2004) (where motion was sworn under penalties of perjury). Accordingly, we deny the petition without prejudice to Mr. Raley to file a new petition containing a sufficient oath. PETITION DENIED without prejudice. GRIFFIN and…
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Antione Hastie v. State, 267 So. 3d 1037 (Fla. 4th DCA 2019)…ed to impose a VCC sentence. The lower court denied Hastie’s motion. The trial court correctly considered Hastie’s juvenile burglary offense for his VCC designation because he was tried and convicted as an adult. See generally Reed v. State, 880 So. 2d 1269 (Fla. 3d DCA 2004) (explaining that a juvenile’s adult conviction can be considered for habitual offender sentencing). However, Hastie’s VCC sentences for his grand theft convictions are illegal. The VCC statute states, in relevant part:…
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- State v. Shearer, 628 So. 2d 1102 (Fla. 1993)