MARQUELL L. STEVENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stevens filed a timely Rule 3.850 motion for postconviction relief alleging ineffective assistance of counsel. The postconviction court dismissed the motion as facially insufficient because it refused to consider Stevens' unsworn memorandum of law. The appellate court reversed, holding that because Stevens' factual allegations were contained in the properly sworn motion, the unsworn memorandum (which contained only legal argument) was properly considered.
The court reversed the dismissal, holding that the postconviction court erred in refusing to consider Stevens' unsworn memorandum of law. Because all factual allegations supporting the motion were contained in the properly sworn motion, the memorandum did not need to be sworn; it was properly considered as it contained only legal arguments based on facts already alleged under oath.
[1] A postconviction motion is facially insufficient if it lacks the necessary factual allegations to support its claims.
[2] A memorandum of law accompanying a postconviction motion need not be sworn if it contains only legal arguments and not additional factual allegations.
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Join FLexlaw to unlock all legal intelligence“Rule 3.850 requires that motions filed pursuant to that rule be under oath. The purpose of the oath is to prevent false factual allegations by subjecting the movant to prosecution for perjury if the factual allegations in the motion prove to be false.”
Establishes the purpose and requirement of the oath for Rule 3.850 motions
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Join FLexlaw to unlock all legal intelligenceIn December 2003, Marquell L. Stevens filed a timely, properly sworn motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, …
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KELLY, Judge.
In December 2003, Marquell L. Stevens filed a timely, properly sworn motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging five claims of ineffective assistance of counsel. Stevens’ motion recited the facts on which he was relying, and it was accompanied by a memorandum of law. The memorandum of law was not sworn. Relying on Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993), the postconviction court concluded that it could not consider the memorandum because it lacked an oath. Stevens’ memorandum, not his motion, contained the legal argument that, among other things, explained how he was prejudiced by his attorney’s alleged ineffectiveness. Because the postconviction court did not consider the memorandum, it concluded that Stevens’ motion was facially insufficient, and it dismissed the motion.1 We reverse because the postconviction court erred when it refused to consider Stevens’ memorandum of law.
Rule 3.850 requires that motions filed pursuant to that rule be under oath. The purpose of the oath is to prevent false factual allegations by subjecting the mov-ant to prosecution for perjury if the factual allegations in the motion prove to be false. See Scott v. State, 464 So. 2d 1171 (Fla.1985). In Oramas, 615 So. 2d at 854, we upheld a dismissal for facial insufficiency where the postconviction court refused to consider the movant’s unsworn memorandum.
However, in that case, the factual allegations supporting the motion were contained only in the memorandum of law.
Accordingly, the posteonviction court could not consider those facts, and it correctly concluded that the motion was facially insufficient. Id.
In contrast, Stevens’ properly sworn motion, not his memorandum, contains all the factual allegations he relies on to support his claims. It was not necessary for the memorandum to be under oath because it did not contain any additional factual allegations but rather set forth his legal arguments based on the facts contained in the sworn motion. Because the postconviction court erred when it refused to consider the memorandum, we reverse and remand for further proceedings.
Reversed and remanded.
SALCINES and CANADY, JJ., Concur. . Stevens' motion was pending for twenty-three months before the post-conviction court issued its order dismissing the motion as facially insufficient. As a result, the two-year limit for filing a rule 3.850 motion expired while the motion was pending. In such circumstances, dismissal should be without prejudice and the court should provide the mov-ant with an opportunity to file another rule 3.850 motion to correct the deficiencies. Cf. Lewis v. State, 777 So. 2d 1083 (Fla. 2d DCA 2001).
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Spera v. State, 971 So. 2d 754 (Fla. 2007)…e. See Fla. R.Crim. P. 3.850(c), 3.851(e); see also Fla. R.Crim. P. 3.987 (providing a form for motions and warning that “[a]ny false statement of a material fact may serve as the basis for prosecution and conviction for perjury”); Stevens v. State, 947 So. 2d 1227, 1228 (Fla. 2d DCA 2007) (“The purpose of the oath is to prevent false factual allegations by subjecting the movant to prosecution for perjury if the factual allegations in the motion prove to be false.”). Neither Nelson nor Bryant condones making f…
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Welch v. State, 946 So. 2d 649 (Fla. 2d DCA 2007)…quisite 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).…
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Green v. State, 310 So. 3d 542 (Fla. 5th DCA 2023)…has accordingly opined: “We require more than that. The defendant must be able to affirmatively say that his allegation is true and correct.” Id. (internal citations omitted); see also Spera, 971 So. 2d at 762 (citing, inter alia, Stevens v. State, 947 So. 2d 1227, 1228 (Fla. 2d DCA 2007) (“The purpose of the oath is to prevent false factual allegations by subjecting the movant to prosecution for perjury if the factual allegations in the motion prove to be false.”)). Thus, on remand, prior to setting an evide…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scott v. State, 464 So. 2d 1171 (Fla. 1985)
- Anfield v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Lewis v. State, 777 So. 2d 1083 (Fla. 2d DCA 2001)