ELLIS v. STATE (2001)

District Court of Appeal of Florida,Fifth District.

Mark O. ELLIS, Appellant, v. STATE of Florida, Appellee.

No. 5D01-3098.

Decided: December 14, 2001

Mark Orben Ellis, Lowell, pro se. Robert A. Butterworth, Attorney General, Tallahassee and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

Mark Orben Ellis appeals the denial of his rule 3.850 motion. See Fla. R.Crim. P. 3.850. Concluding that the trial court erred in denying the motion solely on the basis that it was not notarized, we reverse.

In order for a rule 3.850 motion to be legally sufficient it does not have to be notarized, it only has to contain a signed declaration. See State v. Shearer, 628 So.2d 1102 (Fla.1993)(holding that a defendant's post-conviction motion must contain either a notarized oath or a signed declaration). Since Ellis' motion contained a signed declaration, it was legally sufficient. The State candidly admits that the motion was sufficient and this matter should be remanded for further proceedings.

REVERSED and REMANDED.

PALMER, J.

COBB and SAWAYA, JJ., concur.

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