McWILLIAMS v. STATE, 469 So.2d 229 (Fla.App. 2 Dist. 1985)

JAMES J. McWILLIAMS, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 85-575.District Court of Appeal of Florida, Second District.
May 24, 1985.

Appeal from the Circuit Court, Pinellas County, David Seth Walker, J.

Page 230

PER CURIAM.

The trial court did not err in summarily denying appellant’s motion for post-conviction relief. Appellant’s motion was facially insufficient because appellant failed to make the motion under oath and state whether he had taken an appeal as required under Florida Rule of Criminal Procedure 3.850. Baker v. State, 448 So.2d 36 (Fla. 1st DCA 1984).

However, we cannot consider the correctness of the judge’s ruling which found that appellant was entitled to eighty days of jail credit time because the judge failed to attach a copy of the portion of the record which conclusively shows appellant is not entitled to relief. Fla.R.Crim.P. 3.850. Therefore, we affirm on the basis of facial insufficiency without prejudice to allow appellant to file a sworn motion. Scott v. State, 464 So.2d 1171, 1172 (Fla. 1985).

Affirmed without prejudice to file a proper motion pursuant to Florida Rule of Criminal Procedure 3.850.

RYDER, C.J., and LEHAN and FRANK, JJ., concur.

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