NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RUSS FRANKLIN WILSON, SR., )
)
Appellant, )
)
v. ) Case No. 2D15-4440
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 14, 2016.
Appeal from the Circuit Court for Polk
County; Kelly P. Butz, Judge.
Russ Franklin Wilson, Sr., pro se.
Pamela Jo Bondi, Attorney General,
Tampa, for Appellee.
SLEET, Judge.
Russell Franklin Wilson challenges the postconviction court's summary
denial of his amended Florida Rule of Criminal Procedure 3.850 motion in which he
alleged newly discovered evidence in conjunction with his convictions on several
charges following a jury trial. In denying the motion, the postconviction court
determined that the affidavits attached to Wilson's motion were "legally insufficient."
Because we see no legal deficiency in Wilson's affidavits, we reverse and remand for
the postconviction court to consider Wilson's amended motion on its merits.
In his initial rule 3.850 motion, Wilson alleged that he had obtained newly
discovered evidence in the form of the testimony of six new witnesses. He attached an
affidavit from each witness, but each affidavit only stated that the affiant had read
Wilson's postconviction motion and that "the facts told to [Wilson] by me are true and
correct." Additionally, each affiant included the following attestation tracking the
language of section 92.525, Florida Statutes (2015): "I declare that I have read the
foregoing and that the facts and matters stated therein are true and correct."
The postconviction court dismissed that initial motion, agreeing with the
State's response to Wilson's motion that "the affidavits were legally insufficient" because
they failed to list facts personally known to the affiants and instead adopted the
allegations made by Wilson and because they were not sworn to under oath before a
person having authority to administer an oath. However, the court gave Wilson leave to
amend. Wilson did so, this time relying on only two of his claims of newly discovered
evidence and attaching the affidavits of those two witnesses. The postconviction court
summarily denied the amended motion, concluding that "the affidavits submitted by the
defendant from these witnesses remain legally insufficient." The court's order does not
specify exactly how the affidavits are insufficient, and our review of the affidavits does
not reveal the answer.
First, each affidavit now states that it is made based on the affiant's own
personal knowledge and details the facts known to the affiant that would be newly
discovered evidence. As such, the affidavits cannot be deemed insufficient in this
regard.
Furthermore, as to whether the affidavits were properly sworn, Florida
Rule of Criminal Procedure 3.850(c)(7) states: "If the defendant is filing a newly
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discovered evidence claim based on recanted trial testimony or on a newly discovered
witness, the defendant shall include an affidavit from that person as an attachment to
his or her motion." Additionally, section 92.525 provides as follows:
(1) If authorized or required by law, by rule of an
administrative agency, or by rule or order of court that a
document be verified by a person, the verification may be
accomplished in the following manner:
(a) Under oath or affirmation taken or administered
before an officer authorized under s. 92.50 to
administer oaths;
(b) Under oath or affirmation taken or administered by
an officer authorized under s. 117.10 to administer
oaths; or
(c) By the signing of the written declaration prescribed
in subsection (2).
(2) A written declaration means the following statement:
"Under penalties of perjury, I declare that I have read the
foregoing [document] and that the facts stated in it are true,"
followed by the signature of the person making the
declaration, except when a verification on information or
belief is permitted by law, in which case the words "to the
best of my knowledge and belief" may be added. The
written declaration shall be printed or typed at the end of or
immediately below the document being verified and above
the signature of the person making the declaration.
The affidavits at issue here each contained an attestation tracking the
language of section 92.525(2), and we conclude that such is sufficient to satisfy the
requirements of rule 3.850(c)(7). We initially note that the rule only requires an affidavit;
it does not specify how the affidavit is to be sworn. Additionally, the Florida Supreme
Court has held that "the unnotarized oath from subsection 92.525(2) [can] be used in a
rule 3.850 motion." State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993); see also
Hayden v. State, 117 So. 3d 1 (Fla. 2d DCA 2011) ("The Florida Supreme Court has
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determined that the oath set forth in section 92.525(2) is sufficient to satisfy the oath
requirement in postconviction motions. The court reasoned that this particular oath
provides the same protection against perjury as a notarized oath." (citation omitted)).
We see no reason why the oath found sufficient enough to ensure the veracity of the
rule 3.850 motion itself should be found insufficient to ensure the veracity of the
affidavits filed in support of the motion.
We therefore conclude that based on the plain language of section 92.525
and the supreme court's application of the statute in Shearer, the affidavits attached to
Wilson's amended rule 3.850 motion were not legally insufficient. Accordingly, we
reverse the postconviction court's denial of the motion and remand for the court to
address the motion on its merits.
Reversed and remanded.
SILBERMAN and LaROSE, JJ., Concur.
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