Posts Tagged ‘notarized’


Florida Case Law Update: Hyden v. State

Tuesday, September 13th, 2011

Florida criminal defense attorneys (especially those practicing in the 2nd DCA region), should be aware of some case law that will be important in felony DUI cases and in any case where the defense has filed a motion to dismiss.

On August 24, 2011, the Florida 2nd DCA handed down an opinion in Hyden v. State (2D10-1184).  To read the opinion, go here. Although I won’t be summarizing the entire opinion, I did want to highlight two issues that came up.

Proving Prior Convictions on a Felony DUI–The opinion doesn’t offer any new law on this issue, but reaffirms the notion that the State has the burden of proving the three qualifying felony convictions necessary for a felony DUI.

Notarizing a Motion to Dismiss–Just what type of oath is required on a sworn motion to dismiss?  Does the motion have to be notarized?  Unfortunately, we still don’t know, and here’s why.  The Defendant had filed a motion to dismiss at the trial court level. But instead of getting the motion notarized with a proper oath, the Defendant swore to his own oath.  Specifically, the UN-NOTARIZED oath read:  “Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true.”

The trial court judge questioned whether this “oath” was sufficient or not, and he stated:

“I have a written statement by the defendant, but it’s not sworn. I mean, it is under oath, but it is not actually under oath. There is no notary. In fact, I’m not even sure your – that motion qualifies as under oath.”

But the State didn’t argue the issue at the trial court level (i.e., preserve the appellate record), and the court went on to rule on the motion.

We do not reach the issue today because the State did not pursue the issue below and the trial court reached the merits of Hyden’s motion to dismiss…The State waived any technical noncompliance of the motion and affidavit when it declined to address the court’s concerns about the oath and moved forward to the presentation of its evidence on the merits of Hyden’s motion. See Hudson v. State, 745 So. 2d 997, 999 (Fla. 2d DCA 1999).

In the end, we are left with two practice pointers about this issue:

1.  Defense attorneys, get a notary to notarize the motion to dismiss.  Make sure the notary uses a standard oath.

2.  State attorneys, preserve the record.  You may have won this point had you made ANY argument at the trial level.


(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

At Matthews Law Firm, P.A., we practice criminal defense.