Serving Clients During COVID-19. Learn More »

Must a Sworn Document Be Notarized? Are “Unnotorarized Oath’s” Legal?

jumpstory-download20200923-124937-300x200What I’m listening to right now: When The World Was Round, Ian Hunter.  The lyric that grabs me every time is “there’s too much information but not enough to go on”.

Too much.

Too much stimulus.  What do we do with all this cheap, ever-flowing stimulus?  How many people do you hang out with who don’t look at their phone while you’re together?  Is all this stimulus affecting our brains somehow?

Often, our visual cortexes are getting so much stimulus that coming off of it may manifest withdrawal symptoms like a drug addict detoxing.

Hopefully, we can learn ways to maximize the time between a stimulus and our response to it.  As a side note, some neuroscientists have seen a response in our brains to a stimulus–before the stimulus is presented.  Spooky, and a story for another day.

In a half-hearted effort to segue here into the law, this highly technical article should serve as a break from your day of high stimulus.  Actually, I get really excited over technicalities like today’s real-life case of Donofrio v. State, 292 So. 3d 510 (Fla. 2d DCA 2020).

Donofrio was chilling in prison and did what lots of folks do while incarcerated, he started looking for mistakes made in his case.  And, he found one dealing with the amount of jail credit he was given, so he filed a motion to correct jail credit.   These motions are so common that the legislature has laid out a bunch of rules governing the filing of these motions, and they are found in Florida Rule of Criminal Procedure 3.801.

If you’re not bored already, I’m not going to pile on by regurgitating Rule 3.801.   A big deal within this rule is the fact that  Rule 3.801(c) states that “the motion shall be under oath.”

Ok, what does “under oath” mean?

Donofrio’s motion was denied because the judge claimed it wasn’t under oath.  To understand why the lower court denied the Donofrio’s motion, let’s look at what Donofrio did.  He relied on Florida Statute 92.525 entitled “verification of documents; perjury by false written declaration”.

Section 92.525 states that “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.” id.

And that’s exactly what Donofrio did, he signed right under that declaration found in Section 92.525.

But the court wanted the motion signed under oath or affirmation before someone authorized to administer oaths, and that’s typically a notary.  Donofrio didn’t notarize his motion.  And, as such, the motion was denied.

So, Donofrio appealed to a higher court (redundant, I suppose, it’s just habit to add “to a higher court” even though every appeal is such.  Anyway.).  The appellate court overturned the denial, explaining that “the order dismissing Donofrio’s motion for lack of an oath was mistaken.  The motion contained a written declaration that complied with the requirements of Section 92.525(2).  The written declaration was made under penalty of perjury, provided that Donofrio had read the motion, and certified that the facts contained therein were true and correct.  The declaration was made at the end of the motion but above Donofrio’s signature. . . As such, it met the requirements of rule 3.801(c).” id. at 2.  (this form of oath is also good for a Rule 3.850 motion, FYI)

Now, I know where you’re going with this, so let’s zoom out on our lens a bit and get a bigger picture.  Obviously, this case doesn’t stand for the proposition that all documents that are “under oath” can be done via the rules set forth in section 92.525(2).  Here’s one big example.

If the cops want a warrant to search your home and get their germs all over your wife’s underwear drawer, Florida Rule of Criminal Procedure 3.120 requires that the warrant be “sworn to before a person authorized to administer oaths.”  Yes, the cops have tried to avoid this rule by attempting to swear to the warrant via Section 92.525, like Donofrio did.

That attempt was shot down.  Not gonnnnaaaa do it (in my best Dana Carvey Bush Sr. voice).  In Crain v. Stateour local Fifth DCA held that “to allow verification under section 92.525 without an oath administered by an individual authorized to administer oaths would essentially vitiate the provisions of Rule 3.120.” 914 So. 2d 1015, 1020 (Fla. 5th DCA 2005).

The Crain case delves into the difference between an affidavit, which must be verified by someone authorized (like a notary), and a document that can be verified via 92.525, and notes that in several places our legislature has made a distinction between an affidavit and a document signed under oath vial 92.525(2): “Oddly, there are statutes, such as section 409.256(2)(a)(5) Florida Statutes (Paternity) that allow alternatively either (1) an affidavit or (2) “a written declaration as provided in section 92.525(2).  Why would the legislature need to authorize a section 92.525(2) declaration as an alternative to an affidavit if, by the terms of 92.525 itself, the declaration in 92.525(2) already always satisfies the affidavit requirement.” id. at 1026.

So, must an affidavit be notarized, or can it just be signed like Donofrio did?  Well, like so many things in the law, that depends.  The court in Crain goes on to say that “my Westlaw search turned up over 1,100 references to ‘affidavits’ in Florida Statutes that do not have an associated express requirement that a document be ‘executed’ ‘before a person authorized to administer oaths.’ If Judge Torpy is correct, these ‘affidavits’ can be replaced by verification.” id. at 1027.

Clear as mud, right?  For now, we know that many post-conviction motions, like a Rule 3.850 or 3.801, can be signed under oath without a notary, so long as the text complies with 92.525(2).  Beyond that, I’m not so sure, and neither is the court.