DERRICK WILFONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Dismissal With Leave To Amend cases and more on FLexlaw
PER CURIAM.
We withdraw the opinion dated December 22, 1999, and substitute the following.
The trial court denied Derrick Wilfong’s postconviction motion because his factual allegations were contained in an unsworn memorandum, not in the motion itself. Where that type of technical defect renders a motion legally insufficient, the motion should not be denied, but rather should be dismissed with leave to file a new motion that cures the error. Anderson v. State, 627 So. 2d 1170, 1171 (Fla.1993).
We therefore affirm the summary denial of the motion, but do so without prejudice to file a new, properly sworn motion raising the same claims. Since the time for filing under Florida Rule of Criminal Procedure 3.850(b)(1999) has now expired, the new motion must be filed within thirty days of the issuance of the mandate in this appeal.
POLEN, KLEIN and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Boehm v. State, 762 So. 2d 571 (Fla. 4th DCA 2000)…randum of law. This court recently suggested that, when such a technical defect renders a motion legally insufficient, instead of denying the motion, it should be dismissed with leave to file a new motion that cures the defect. See Wilfong v. State, 765 So. 2d 67 (Fla. 4th DCA 2000)(on motion for rehearing). Consequently, without passing on the merits of Boehm’s claim, our affirmance is without prejudice for Boehm to file a time [*572] ly, properly sworn motion raising again the claim that his attorney was…
Authorities Cited
- Anderson v. State, 627 So. 2d 1170 (Fla. 1993)