GEORGE ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2016-10-19
No. 4D16-1523
GROSS, GERBER and CONNER, JJ., concur.
202 So. 3d 928 Florida District Court of Appeal, Fourth District (2016)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

A postconviction movant should be granted leave to amend a facially insufficient claim of newly discovered evidence if the claim is not properly sworn.


Facts & Procedural History

George Roberts appealed the summary denial of his motion for postconviction relief, which included a claim of newly discovered evidence based on witne…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

George Roberts appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Roberts alleged several grounds for relief, but some of these grounds were not numbered. One of the unnumbered grounds asserted a claim of newly discovered evidence based on an allegation that two key state witnesses, Roberts’s daughters, recanted them testimony regarding sexual abuse. The trial court denied this claim because Roberts failed to. attach sworn affidavits from these witnesses as required by rule 3.850(c).1

On appeal, the state concedes, and we agree, that Roberts should have been granted leave to amend this facially insufficient claim. See Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So.2d 754, 761 (Fla.2007); Fletcher v. State, 53 So.3d 1249, 1249 (Fla. 4th DCA 2011) (holding that postconviction movant was entitled to have an opportunity to cure insufficient claim of newly discovered evidence by refiling the motion with a properly sworn affidavit).

We therefore reverse and remand as to Roberts’s claim of newly discovered evidence. The trial court should enter an order granting Roberts leave to refile this claim with properly sworn affidavits. See Fla. R. Crim. P. 3.850(f)(3). We affirm the other grounds raised in his motion without comment.

Affirmed in part; reversed and remanded in part,

GROSS, GERBER and CONNER, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw