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195 So. 3d 431

Benevento v. State

District Court of Appeal of Florida · decided 2016-07-27

Decided 2016-07-27

¶1On Concession of Error

PER CURIAM.

¶2We reverse the trial court’s order denying the defendant’s Florida Rule of Criminal Procedure 3.860 motions for postcon-viction relief. We remand for further proceedings consistent with . rule 3.850(f)(2).

¶3The state’s response to the motions in the trial court explained that because the motions lacked an oath and certification required by rules 3.850(e) and (n), dismissal without prejudice for the defendant to cure these defects would be appropriate pursuant to rule 3.850(f)(2).

¶4The trial court entered an order adopting and incorporating the state’s response, but then added that it was denying the motions “on the merits without further hearing.” The order provided no explanation for the denial or for not following the state’s recommendation to follow rule 3.850(f)(2).

¶5As the state concedes, the trial court should not have denied the facially insufficient motions “on the merits without further hearing.” We reverse the orders and remand for further proceedings consistent with rule 3.850(f)(2).

¶6Reversed and remanded for further proceedings.

DAMOORGIAN, GERBER and CONNER, JJ., concur.
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