Flint v. State

561 So. 2d 1343, 1990 WL 72515

• Court: District Court of Appeal of Florida
• Decided: June 1, 1990
• Docket: 89-2343
• Status: Published

Opinion

561 So.2d 1343 (1990)

Melinda Diane FLINT, Appellant,
v.
STATE of Florida, Appellee.

No. 89-2343.

District Court of Appeal of Florida, First District.

June 1, 1990.

Daniel A. McKeever, Jr., Live Oak, for appellant.

Robert A. Butterworth, Atty. Gen., William A. Hatch, Asst. Atty. Gen., for appellee.

NIMMONS, Judge.

Appellant appeals from an order summarily denying her "Motion For New Trial (Newly Discovered Evidence)." The motion recited that it was filed pursuant to Fla.R.Cr.P. 3.600. Although the motion was not filed within the ten-day period provided for by Rule 3.590, another panel of this court, in an earlier unpublished order entered herein, appropriately construed the appellant's motion as a Rule 3.850 motion in accordance with the Supreme Court's holding in Richardson v. State, 546 So.2d 1037 (Fla. 1989) ("all newly discovered evidence claims must be brought in a motion pursuant to Fla.R.Cr.P. 3.850").

We affirm the order denying the above motion because the motion failed to comply with the requirements of Rule 3.850, including the requirement that the motion be under oath. The motion is further facially insufficient because the allegations thereof contain mere conclusions. This affirmance is without prejudice to the filing of a motion in conformance with the Rule. Williams v. State, 539 So.2d 9 (Fla. 1st DCA 1989).

The appellant also appeals from another order denying the appellant's motion to correct an alleged illegal sentence. We have examined the issue raised thereunder and find appellant's argument to be without merit.

AFFIRMED.

ERVIN, J., and THOMPSON, FORD L. (Ret.), Associate Judge, concur.