EDWIN A. VASQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edwin Vasquez appealed the dismissal of his postconviction rule 3.850 motion challenging his conviction. The postconviction court dismissed the motion because while the motion itself was properly sworn, the attached memorandum with supporting facts was not. The appellate court affirmed the dismissal, finding that Vasquez had nearly ten months remaining to file a compliant motion before the two-year deadline expired.
The appellate court affirmed the dismissal of Vasquez's rule 3.850 motion. The court declined to require the trial court to specify a time limit for refiling because Vasquez had nearly ten months remaining to file a facially sufficient, properly sworn motion before the two-year filing deadline expired.
[1] A motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 must be properly sworn, including any attached memorandum containing support…
[2] A trial court may dismiss a motion for postconviction relief if the attached memorandum of supporting facts is not sworn, even if the motion itself is properly sworn.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Pursuant to rule 3.850(b), a motion to vacate, set aside, or correct sentence must be filed within two years after the judgment and sentence becomes final in a non-capital case.”
Establishes the controlling procedural rule for the two-year filing deadline applicable to rule 3.850 motions in non-capital cases.
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Join FLexlaw to unlock all legal intelligenceVasquez filed a rule 3.850 motion to vacate, set aside, or correct his sentence. The postconviction court found the motion itself was properly sworn b…
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DAVIS, Judge.
Edwin A. Vasquez appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court found that while Vasquez’s rule 3.850 motion was properly sworn, the attached memorandum containing the supporting facts was not. Accordingly, the court dismissed Vasquez’s motion. See Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003). In this appeal, Vasquez asks this court to remand with instructions that the postcon- viction court specify a time limit for him to refile. However, because we conclude that Vasquez currently has nearly ten months to timely file such a motion, we affirm the dismissal and decline to require that a time limit be set.
Pursuant to rule 3.850(b), a motion to vacate, set aside, or correct sentence must be filed within two years after the judgment and sentence becomes final in a non-capital case. Because Vasquez’s judgment and sentence did not become final until this court’s mandate on his direct appeal issued on January 24, 2007, see McCuiston v. State, 507 So. 2d 1185, 1186 (Fla. 2d DCA 1987), the time for Vasquez to file a facially sufficient, properly sworn rule 3.850 motion will not expire until two years from that date.
Having concluded that Vasquez’s time for filing a timely rule 3.850 has not expired and that he still has sufficient time to refile, we conclude that the trial court did not err in failing to specify a time limit for refiling. We affirm.
FULMER and WALLACE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- McCUISTON v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987)
- Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003)