Vazquez v. State

District Court of Appeal of Florida

Vazquez v. State

107 So. 3d 1123, 2011 WL 43495, 2011 Fla. App. LEXIS 22

CourtDistrict Court of Appeal of Florida

DecidedJanuary 7, 2011

DocketNo. 2D10-2641

StatusPublished

This text of 107 So. 3d 1123 (Vazquez 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.

Bluebook

Vazquez v. State, 107 So. 3d 1123, 2011 WL 43495, 2011 Fla. App. LEXIS 22 (Fla. Ct. App. 2011).

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Opinion

LaROSE, Judge.

Eduardo Vazquez appeals an order striking his motion for postconviction relief because it contained an insufficient oath. See Fla. R.Crim. P. 3.850(e); Scott v. State, 464 So.2d 1171, 1172 (Fla.1985); Welch v. State, 946 So.2d 649, 650 (Fla. 2d DCA 2007). We dismiss the appeal for lack of jurisdiction.

The postconviction court struck Mr. Vazquez’s motion without prejudice to refile a properly sworn motion within sixty days. This is not a final order. See Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 562-63 (Fla. 2d DCA 2008). However, the order advised Mr. Vazquez that he must appeal within thirty days. Mr. Vazquez followed this directive and timely filed notice of appeal. To our knowledge, he did not amend his rule 3.850 motion.

In Christner, 984 So.2d at 562, we explained that a postconviction court should advise a claimant, in circumstances involving a nonfinal order such as the one present here, that the order is “not appealable at this time.” Accordingly, on remand, the postconviction court should amend its order to so provide and should also give Mr. Vazquez sixty days in which to file a sufficient postconviction motion if he is able to do so. See Scott, 464 So.2d at 1172; Welch, 946 So.2d at 650; see also Herron v. State, 34 So.3d 206 (Fla. 2d DCA 2010).

Dismissed and remanded.

KELLY and KHOUZAM, JJ., Concur.

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LaROSE, Judge.

Eduardo Vazquez appeals an order striking his motion for postconviction relief because it contained an insufficient oath. See Fla. R.Crim. P. 3.850(e); Scott v. State, 464 So.2d 1171, 1172 (Fla.1985); Welch v. State, 946 So.2d 649, 650 (Fla. 2d DCA 2007). We dismiss the appeal for lack of jurisdiction.

The postconviction court struck Mr. Vazquez’s motion without prejudice to refile a properly sworn motion within sixty days. This is not a final order. See Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 562-63 (Fla. 2d DCA 2008). However, the order advised Mr. Vazquez that he must appeal within thirty days. Mr. Vazquez followed this directive and timely filed notice of appeal. To our knowledge, he did not amend his rule 3.850 motion.

In Christner, 984 So.2d at 562, we explained that a postconviction court should advise a claimant, in circumstances involving a nonfinal order such as the one present here, that the order is “not appealable at this time.” Accordingly, on remand, the postconviction court should amend its order to so provide and should also give Mr. Vazquez sixty days in which to file a sufficient postconviction motion if he is able to do so. See Scott, 464 So.2d at 1172; Welch, 946 So.2d at 650; see also Herron v. State, 34 So.3d 206 (Fla. 2d DCA 2010).

Dismissed and remanded.

KELLY and KHOUZAM, JJ., Concur.

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107 So. 3d 1123, 2011 WL 43495, 2011 Fla. App. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vazquez-v-state-fladistctapp-2011.

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