02-3030 THEOC V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 02-3030 THEOC V. STATE

Case Date: 12/11/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

ALFREDO M. THEOC, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** CASE NO. 3D02-3030 LOWER TRIBUNAL NO. 98-42269 **

Opinion filed December 11, 2002. An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Dade County, Daryl E. Trawick, Judge. Alfredo M. Theoc, in proper person. Richard E. Doran, Attorney General, for appellee.

Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.

COPE, J. Alfredo M. Theoc appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The court ruled that defendant-appellant Theoc had

failed to swear to the motion. point, we reverse.

As the court erred on this

At the end of the Rule 3.850 motion, the defendant executed the "Unnotarized Oath" set forth in Florida Rule of Criminal Procedure 3.987, stating, "Under penalties of perjury, I declare that I have read the foregoing Motion for Post Conviction Relief and that the facts stated in it are true." The State filed a response arguing that the motion should be denied because it failed to comply with the oath requirement of Rule 3.850. The trial court accepted this argument and

denied the motion without prejudice. The State overlooked the fact that section 92.525, Florida Statutes (2001), allows an unnotarized oath, in the form used by the defendant in this case. The Florida Supreme Court has

specifically authorized this procedure, State v. Shearer, 628 So. 2d 1102 (Fla. 1993), and the standard form of Rule 3.850 motion now gives an inmate the option of executing a notarized oath, or an unnotarized oath. Fla. R. Crim. P. 3.987. Under of

either alternative, the motion is sworn under perjury. Shearer, 628 So. 2d at 1103.

penalties

The State's reliance on Anderson v. State, 627 So. 2d 1170 (Fla. 1993), was misplaced. That case involved a Rule 3.850 In the present case, the

motion which contained no oath at all.

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defendant properly complied with the oath requirement. Since the motion was properly sworn to, we reverse the order now under review and remand the cause to the trial court for further consideration. the defendant's motion. Reversed and remanded for further proceedings consistent herewith. We express no opinion on the merits of

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