DESOUZA V. STATE

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2004 RUPERT DESOUZA, ** Appellant, ** ** vs. THE STATE OF FLORIDA, CASE NO.:3D04-157 LOWER TRIBUNAL NO.:01-5634 ** Appellee. ** Opinion filed June 9, 2004. An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Miami-Dade County, Lawrence Schwartz, Judge. Rupert Desouza, in proper person. Charles J. Crist, Attorney General, for appellee. Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ. PER CURIAM. The defendant appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, finding that the trial court properly ruled that the defendant had failed to sign and swear the motion. See Fla. R. Crim. P. 3.850(c)(stating that a motion for post- conviction relief shall be under oath . . . ); see also Fla. R. Crim. P. 3.987 (providing pro se defendants with a model form to use when filing a post-conviction motion which satisfies the rule 3.850(c) oath requirement). Nevertheless, we conclude that the defendant should be afforded an opportunity to refile a properly sworn post-conviction motion. See Groover v. State, 703 So. 2d 1035, 1038 (Fla. 1997)(finding that the [f]ailure to meet the oath requirement [under rule 3.850(c)] warrants dismissal of the motion without prejudice ); Weisman v. State, 651 So. 2d 148, 149 (Fla. 2d DCA 1995)(where the trial court denied the defendant s belated appeal pursuant to rule 3.850 because it was not made under oath, finding that the trial court should have afforded [the defendant] an opportunity to refile a properly sworn motion for belated appeal ). Affirmed. 2

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