Black v. State

Dec 15, 1992
91-1246
Versions:610 So. 2d 89
1992 WL 365775

PER CURIAM.

Appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his unsworn motion, appellant alleged that his guilty plea was involuntary and that trial counsel rendered ineffective assistance. The trial court properly rejected appellant‘s assertion that the plea was involuntary. Although the court correctly noted that the ineffective assistance claim could be refuted by appellant‘s contrary representations on a plea form, see Cameron v. State, 582 So.2d 168 (Fla. 1st DCA 1991), and Thomas v. State, 419 So.2d 1141 (Fla. 1st DCA 1982), the trial court neglected to attach the plea form to its order denying relief. Although reversal would be necessary given the trial court‘s failure to attach this critical portion of the record, we must affirm the summary denial due to the insufficiency of the unsworn motion. See Scott v. State, 464 So.2d 1171 (Fla. 1985); Williams v. State, 580 So.2d 624 (Fla. 1st DCA 1991); Ross v. State, 598 So.2d 148 (Fla. 2d DCA 1992).

Accordingly, we affirm the denial of appellant‘s motion without prejudice to the filing of a properly sworn motion.

BOOTH and MINER, JJ., concur.

BARFIELD, J., concurs with opinion.

BARFIELD, Judge, concurring.

I concur in the result only. If the motion in this case were properly sworn, the order of the trial court would still be affirmable because the contents of the motion are facially insufficient to set forth the claim for ineffective assistance of counsel. If the only defect in this appeal is the failure to attach the plea agreement as referenced in the judge‘s order, such defect is easily remedied by requesting the trial court to forward the document that was omitted from the record. Reversal would not be necessary.