NICHOLAS M. WELCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nicholas Welch appeals the denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850. The appellate court reversed because Welch's motion was not properly sworn, as required by rule 3.850(c), despite containing the authorized unnotarized oath format that Welch failed to sign.
A rule 3.850 motion that is not properly sworn must be dismissed without prejudice, and the postconviction court should not address the claims on the merits. Upon resubmission, if the court again denies the motion, it must either attach record portions that conclusively refute the claims or conduct an evidentiary hearing.
[1] A motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 must be properly sworn to be legally sufficient.
[2] A postconviction motion lacking a required signature on its sworn oath is not properly sworn.
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Join FLexlaw to unlock all legal intelligence“Because Welch's rule 3.850 motion was not properly sworn, the postconviction court should have dismissed it without prejudice to Welch timely filing a properly sworn motion.”
Establishes the proper procedure when a rule 3.850 motion lacks proper verification
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Join FLexlaw to unlock all legal intelligenceWelch filed a rule 3.850 postconviction motion alleging six claims for relief. Page 17 of the motion contained an authorized unnotarized oath with Wel…
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[*650] KELLY, Judge.
Nicholas M. Welch appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Welch’s postconviction motion is not properly sworn, we reverse the postconviction court’s denial and remand for further proceedings.
Welch’s rule 3.850 motion and memorandum of law alleged six claims. The post-conviction court addressed the six claims on the merits. However, Welch’s rule 3.850 motion, which contained the supporting facts for the claims, was not properly sworn in compliance with rule 3.850(c).1 Page 17 of Welch’s rule 3.850 motion contained the authorized “unnotarized oath” with Welch’s name and address in block print under the oath and a line for Welch’s signature. See Fla. R.Crim. P. 3.987; State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993). However, Welch did not sign the oath. Because Welch’s rule 3.850 motion was not properly sworn, the postconviction court should have dismissed it without prejudice to Welch timely filing a properly sworn motion. See Ferrell v. State, 825 So. 2d 498, 499 (Fla. 2d DCA 2002).
Accordingly, we reverse the postconviction court’s order and remand for dismissal of Welch’s rule 3.850 motion without prejudice to Welch timely filing a verified rule 3.850 motion. If the postconviction court again denies Welch’s motion, it must either attach to its order those portions of the record that conclusively refute his claims or conduct an evidentiary hearing.
Reversed and remanded.
SALCINES and VILLANTI, JJ„ Concur. . Welch's memorandum of law was sworn; however, it contained only legal argument. Accordingly, the postconviction court could not have read it in conjunction with the motion to supply the requisite sworn factual allegations required by rule 3.850(c). Cf. Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986). We also note that because the memorandum con-tamed only legal argument, it did not have to be sworn. Stevens v. State, No. 2D05-6156, 947 So. 2d 1227, 2007 WL 188328 (Fla. 2d DCA Jan. 24, 2007) (holding that a memorandum of law need not be sworn if it is not the source of the factual allegations supporting a motion made pursuant to rule 3.850).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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James v. State, 12 So. 3d 1290 (Fla. 2d DCA 2009)…agree with the postconviction court’s finding that because the motion lacked the proper oath it could not be considered under Florida Rule of Criminal Procedure 3.850. See Fla. R.Crim. P. 3.850(c) (requiring motion to be under oath); Welch v. State, 946 So. 2d 649, 650 (Fla. 2d DCA 2007) (reversing order summarily denying 3.850 motion and remanding for dismissal of motion for lack of proper oath); Morais v. State, 640 So. 2d 1227, 1228 (Fla. 2d DCA 1994) (affirming order dismissing 3.850 motion for lack of pr…
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Vazquez v. State, 107 So. 3d 1123 (Fla. 2d DCA 2011)…LaROSE, Judge. Eduardo Vazquez appeals an order striking his motion for postconviction relief because it contained an insufficient oath. See Fla. R.Crim. P. 3.850(e); Scott v. State, 464 So. 2d 1171, 1172 (Fla.1985); Welch v. State, 946 So. 2d 649, 650 (Fla. 2d DCA 2007). We dismiss the appeal for lack of jurisdiction. The postconviction court struck Mr. Vazquez’s motion without prejudice to refile a properly sworn motion within sixty days. This is not a final order. See Havens v. State, 27…
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Dumel v. State, 183 So. 3d 476 (Fla. 3d DCA 2016)…nd that the facts stated in it are true. Fla. R. Crim. P. 3.987(1). A defendant’s failure to comply with the oath requirement warrants dismissal of the motion without prejudice. See Groover v. State, 703 So. 2d 1035, 1038 (Fla.1997); Welch v. State, 946 So. 2d 649, 650 (Fla. 2d DCA 2007). The defendant, however, must be given an opportunity to amend the motion. See Fla. R. Crim. P. 3.850(f)(2); Gisi v. State, 135 So. 3d 493, 495 (Fla. 2d DCA 2014). Accordingly, we reverse the trial court’s order and remand…
Authorities Cited
- State v. Shearer, 628 So. 2d 1102 (Fla. 1993)
- Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986)
- Marquell L. Stevens v. State, 947 So. 2d 1227 (Fla. 2d DCA 2007)
- Ferrell v. State, 825 So. 2d 498 (Fla. 2d DCA 2002)