Desouza v. State, 3D04-157.

• Decision Date: 09 June 2004
• Docket Number: No. 3D04-157.,3D04-157.
• Citation: 874 So.2d 729
• Parties: Rupert DESOUZA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

874 So.2d 729

Rupert DESOUZA, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-157.

District Court of Appeal of Florida, Third District.

June 9, 2004.

Rupert Desouza, in proper person.

Charles J. Crist, Attorney General, for appellee.

Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.

PER CURIAM.

The defendant appeals an order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, finding that the trial court properly ruled that the defendant had failed to sign and swear the motion. See Fla. R.Crim. P. 3.850(c)(stating that a motion for post-conviction relief "shall be under oath ..."); see also Fla. R.Crim. P. 3.987 (providing pro se defendants with a model form to use when filing a post-conviction motion which satisfies the rule 3.850(c) oath requirement). Nevertheless, we conclude that the defendant should be afforded an opportunity to refile a properly sworn post-conviction motion. See Groover v. State, 703 So.2d 1035, 1038 (Fla.1997)

(finding that the "[f]ailure to meet the oath requirement [under rule 3.850(c)] warrants dismissal of the motion without prejudice"); Weisman v. State, 651 So.2d 148, 149 (Fla. 2d DCA 1995)(where the trial court denied the defendant's belated appeal pursuant to rule 3.850 because it was not made under oath, finding that "the trial court should have afforded [the defendant] an opportunity to refile a properly sworn motion for belated appeal").

Affirmed.