Brown v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOSEPH A. BROWN, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Case No. 2D10-1039 Opinion filed June 30, 2010. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; John W. Dommerich, Judge. Joseph A. Brown, pro se. BLACK, Judge. Joseph A. Brown appeals the postconviction court's order dismissing his motion to enforce plea agreement, treated as a motion under Florida Rule of Criminal Procedure 3.850. The postconviction court found Brown's motion facially insufficient. We note that Brown's motion is not properly sworn for purposes of rule 3.850. The postconviction court dismissed the motion without prejudice to the filing of a facially sufficient motion within the time prescribed by the rule. Because the dismissal was without prejudice, the order is not a final order and the postconviction court appropriately did not admonish Brown to appeal within thirty days. We dismiss this appeal for lack of jurisdiction. The postconviction court should enter a revised order permitting Brown to amend his motion within a reasonable period of time not to exceed thirty days, pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007). See Herron v. State, 35 Fla. L .Weekly D1033 (Fla. 2d DCA May 7, 2010); Moreland v. State, 32 So. 3d 782 (Fla. 2d DCA 2010). If Brown does not amend the motion, the postconviction court should enter a final order disposing of Brown's claims. If Brown does amend his motion, the postconviction court must consider the amendment in its final disposition. Dismissed. DAVIS and VILLANTI, JJ., Concur. -2-

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