Theoc v. State , 832 So. 2d 261 ( 2002 )

832 So. 2d 261 (2002)

Alfredo M. THEOC, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D02-3030.

District Court of Appeal of Florida, Third District.

December 11, 2002.

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. As the court erred on this point, we reverse.

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

The State's reliance on Anderson v. State, 627 So. 2d 1170 (Fla.1993), was misplaced. That case involved a Rule 3.850 motion which contained no oath at all. In the present case, the 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. We express no opinion on the merits of the defendant's motion.

Reversed and remanded for further proceedings consistent herewith.