Peavy v. State

599 So. 2d 234 (1992)

John Wesley PEAVY, Appellant,
v.
STATE of Florida, Appellee.

No. 90-03754.

District Court of Appeal of Florida, First District.

May 20, 1992. Rehearing Denied June 25, 1992.

Robert Augustus Harper, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, for appellee.

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.