Cherry v. State

District Court of Appeal of Florida

Cherry v. State

526 So. 2d 1071, 13 Fla. L. Weekly 1466, 1988 Fla. App. LEXIS 2598, 1988 WL 62176

CourtDistrict Court of Appeal of Florida

DecidedJune 22, 1988

DocketNo. 87-1775

StatusPublished

Cited by2 cases

This text of 526 So. 2d 1071 (Cherry v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cherry v. State, 526 So. 2d 1071, 13 Fla. L. Weekly 1466, 1988 Fla. App. LEXIS 2598, 1988 WL 62176 (Fla. Ct. App. 1988).

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Opinion

JOANOS, Judge.

Anthony Cherry appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to the filing of a properly drafted motion.

In addition to the requirement that a motion for post-conviction relief shall be under oath, rule 3.850 provides that the motion shall include information concerning (a) the judgment and sentence under attack; (b) whether there was an appeal from the judgment or sentence; (c) whether a previous post-conviction motion was filed; (d) if a previous motion was denied, why the claim in the present motion was not raised in a prior motion; and (e) the nature of the relief sought. Numerous decisions from this court have affirmed the summary denial of a motion for post-conviction relief due to the motion’s failure to comply with the minimum requirements of the rule. See Rowe v. State, 474 So.2d 898 (Fla. 1st DCA 1985); Baker v. State, 448 So.2d 36 (Fla. 1st DCA 1984); McElroy v. State, 436 So.2d 417 (Fla. 1st DCA 1983); Robinson v. State, 423 So.2d 466 (Fla. 1st DCA 1982).

In this case, appellant failed to provide specific information regarding the judgment under attack, failed to mention whether there was a previous appeal or motion, and failed to set forth sufficient facts. Therefore, the order denying post-conviction relief is affirmed, without prejudice to file a properly drafted motion.

Affirmed.

SMITH, C.J., and ZEHMER, J., concur.

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JOANOS, Judge.

Anthony Cherry appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to the filing of a properly drafted motion.

In addition to the requirement that a motion for post-conviction relief shall be under oath, rule 3.850 provides that the motion shall include information concerning (a) the judgment and sentence under attack; (b) whether there was an appeal from the judgment or sentence; (c) whether a previous post-conviction motion was filed; (d) if a previous motion was denied, why the claim in the present motion was not raised in a prior motion; and (e) the nature of the relief sought. Numerous decisions from this court have affirmed the summary denial of a motion for post-conviction relief due to the motion’s failure to comply with the minimum requirements of the rule. See Rowe v. State, 474 So.2d 898 (Fla. 1st DCA 1985); Baker v. State, 448 So.2d 36 (Fla. 1st DCA 1984); McElroy v. State, 436 So.2d 417 (Fla. 1st DCA 1983); Robinson v. State, 423 So.2d 466 (Fla. 1st DCA 1982).

In this case, appellant failed to provide specific information regarding the judgment under attack, failed to mention whether there was a previous appeal or motion, and failed to set forth sufficient facts. Therefore, the order denying post-conviction relief is affirmed, without prejudice to file a properly drafted motion.

Affirmed.

SMITH, C.J., and ZEHMER, J., concur.

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526 So. 2d 1071, 13 Fla. L. Weekly 1466, 1988 Fla. App. LEXIS 2598, 1988 WL 62176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-state-fladistctapp-1988.

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