Peavy v. State, 599 So. 2d 234

PER CURIAM.

This cause is before us on appeal from a summary denial of appellant‘s motion for postconviction relief based on newly-discovered evidence. Florida Rule of Criminal Procedure 3.850 provides that any motion shall provide a brief statement of facts relied upon in support of the motion and shall be under oath. Appellant‘s motion contained no facts but incorporated by reference an unsworn memorandum of law containing the factual allegations which formed the basis for the relief sought. The motion was therefore facially insufficient and correctly denied by the trial court. Daniels v. State, 450 So.2d 601 (Fla. 4th DCA 1984); McBride v. State, 524 So.2d 1113 (Fla. 4th DCA 1988); see also Myers v. State, 539 So.2d 525, 526, n. 2 (Fla. 1st DCA 1989).

Accordingly, we affirm the denial of appellant‘s motion for postconviction relief without prejudice to appellant‘s right to seek relief upon a properly sworn motion. Any subsequent motion filed, must be considered by the trial court in light of the recent Supreme Court decision in Jones v. State, 591 So.2d 911 (Fla. 1991).

BOOTH, WOLF and KAHN, JJ., concur.

Case Details

Case Name: Peavy v. State

Court Name: District Court of Appeal of Florida

Date Published: May 20, 1992

Citations: 599 So. 2d 234; 1992 WL 104619; 90-03754

Docket Number: 90-03754

Court Abbreviation: Fla. Dist. Ct. App.