Ramirez v. State

566 So. 2d 939, 1990 Fla. App. LEXIS 7023, 1990 WL 133822

Opinion

PER CURIAM.

The trial court summarily denied appellant’s 3.850 motion on the ground that although the motion was under oath, the appellant had incorporated four pages of facts which were not under oath, citing Daniels v. State, 450 So.2d 601 (Fla. 4th DCA 1984). However, unlike Daniels, the factual recitation here was not part of a separate pleading but was part of the motion itself, being a lengthy recitation of the facts upon which the motion was based. The verification clause states that all facts set forth are true and correct. Thus, the motion properly comports with Scott v. State, 464 So.2d 1171 (Fla.1985), and summary denial based on Daniels was error. This cause is therefore reversed and remanded for further proceedings.

DOWNEY, ANSTEAD and WARNER, JJ., concur.