SHAUN ALMODOVAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shaun Almodovar appeals the dismissal of his Rule 3.850 motion for postconviction relief alleging that the trial court violated his plea agreement by imposing a sentence that did not comply with the negotiated terms. The appellate court dismissed the appeal without prejudice, allowing Almodovar thirty days to file an amended motion that complies with the requirement of a proper oath.
An oath in which a defendant swears statements are true 'to the best of my knowledge' is inadequate under Rule 3.850. When a postconviction motion is dismissed without prejudice for facial insufficiency without specifying a reasonable time limit to amend, and the two-year filing period has expired, the appellate court will dismiss the appeal without prejudice and grant the defendant thirty days from the date the opinion becomes final to file an amended motion.
[1] An oath stating that "all statements are true to the best of my knowledge" is inadequate for the purposes of Florida Rule of Criminal Procedure 3.850.
[2] A motion for postconviction relief dismissed without prejudice is a nonfinal, nonappealable order.
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Join FLexlaw to unlock all legal intelligence“the only avenue for enforcement of a plea agreement is rule 3.850”
Establishes that Rule 3.850 is the exclusive procedural mechanism for challenging alleged plea agreement violations.
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Join FLexlaw to unlock all legal intelligenceAlmodovar entered a negotiated plea agreement providing for a four-year sentence with a three-year mandatory minimum to run concurrent and coterminous…
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Shaun Almodovar appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Almodovar alleges that he entered a negotiated plea in exchange for a four-year sentence with a three-year mandatory minimum to run concurrent and coterminous to an earlier four-year prison sentence from Okeechobee County and that the court imposed a sentence in violation of that agreement. Almodovar previously brought this claim as a “motion for enforcement of plea contract” which was denied by the postconviction court. Almodovar v. State, 56 So.3d 898 (Fla. 2d DCA 2011). On appeal, this court observed that the only avenue for enforcement of a plea agreement is rule 3.850 and remanded for the postconviction court to dismiss the motion with leave for Almodovar to file a properly sworn motion within thirty days of its order. Id. at 899.
In response, Almodovar filed the present motion containing an “unnotarized oath,” through which Almodovar avers that “all statements are true to the best of my knowledge.” This oath is inadequate. See Miller v. State, 848 So.2d 401, 402 (Fla. 2d DCA 2003) (citing Braun v. State, 789 So.2d 1250, 1251 n. 1 (Fla. 4th DCA 2001) (holding that an oath in which the defendant swears the statements contained in the motion are true “to the best of my knowledge and belief’ is inadequate for the purposes of rule 3.850)). The postcon-viction court dismissed the motion without prejudice, noting that time remained under the two-year limitation of rule 3.850 for Almodovar to file a facially sufficient motion. Because the dismissal was without prejudice, this order is a nonfinal, nonap-pealable order. Brown v. State, 36 So.3d 186, 187 (Fla. 2d DCA 2010).
This court has previously expressed its concern with the practice of dismissing a postconviction motion for facial insufficiency without specifying a reasonable time limit within which to amend. Id. Because Almodovar’s two-year time pe*1141riod for filing a rule 3.850 motion has now expired, we dismiss this appeal without prejudice for Almodovar to file an amended motion within thirty days of the date this opinion becomes final. See Spera v. State, 971 So.2d 754, 761 (Fla.2007); Herron v. State, 34 So.3d 206, 206 (Fla. 2d DCA 2010); Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008). If the post-conviction court again denies the claim, it must attach to its order portions of the record that conclusively refute Almodo-var’s allegations.
Dismissed.
ALTENBERND and WHATLEY, JJ„ Concur.
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Delmer Smith, III v. State, 230 So. 3d 57 (Fla. 2d DCA 2017)…e. Delmer Smith, III, appeals the dismissal of his motion to return property. The trial court originally dismissed his motion without prejudice to amend, and therefore the trial court’s dismissal was not renewable on appeal. See Almodovar v. State, 74 So. 3d 1140, 1140 (Fla. 2d DCA 2011) (citing Brown v. State, 36 So. 3d 186, 187 (Fla. 2d DCA 2010)). We relinquished jurisdiction to the trial court so that it could dismiss Mr. Smith’s motion with prejudice. The trial', court obliged, and we may now review the…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Mason v. State, 987 So. 2d 157 (Fla. 5th DCA 2008)
- Trenton Herron v. State, 34 So. 3d 206 (Fla. 2d DCA 2010)
- Braun v. State, 789 So. 2d 1250 (Fla. 4th DCA 2001)
- Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003)
- Brown v. State, 36 So. 3d 186 (Fla. 2d DCA 2010)
- Almodovar v. State, 56 So. 3d 898 (Fla. 2d DCA 2011)