“Under Oath” vs. “Notarized”: When a Signature is Enough to Fight the Power

By: John Guidry

What I’m listening to right now: When The World Was Round by 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. How many people do you hang out with who don’t look at their phone while you’re together? Often, our visual cortexes are getting so much stimulus that coming off it feels like detoxing.

Hopefully, we can learn ways to maximize the time between a stimulus and our response. But today, I’m offering you a break from the noise. We are going to dive into a highly technical, oddly satisfying legal victory where a prisoner outsmarted the system using the fine print.

Need to file a motion but can’t find a notary?

The law might allow a workaround. Call John today at (407) 423-1117.

The Prisoner Who Read the Rules: Donofrio v. State

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. The State had miscalculated his jail credit.

He filed a Motion to Correct Jail Credit (Florida Rule of Criminal Procedure 3.801).

• The Rule: Rule 3.801(c) states that “the motion shall be under oath.”
• The Denial: The judge denied the motion because Donofrio didn’t have it notarized.

Now, getting a notary in prison isn’t exactly like popping down to the UPS Store. It can be a hassle. But Donofrio argued he didn’t need a notary.

The “Magic Words” of Florida Statute 92.525

Donofrio relied on Florida Statute 92.525, which allows for a “verification of documents” without a notary if you sign a specific declaration.

The Declaration:

“Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.”

Donofrio signed right under that sentence. The appellate court in Donofrio v. State, 292 So. 3d 510 (Fla. 2d DCA 2020), sided with him. They ruled that for motions like this (and Rule 3.850 motions), you do not need a notary. The “unnotarized oath” is legally sufficient.

The Big Exception: Cops Can’t Use Shortcuts

Now, let’s zoom out. Just because Donofrio could skip the notary doesn’t mean the police can.

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.”

In Crain v. State (914 So. 2d 1015), the police tried to use the “Donofrio shortcut” (Statute 92.525) to get a search warrant without actually swearing an oath before a judge or notary. The Court said No. They ruled that allowing police to bypass the formal oath requirement would “vitiate” (destroy) the rules protecting our privacy.

The Distinction:

• Prisoner filing a motion? The “Unnotarized Oath” is fine.
• Police kicking down your door? They better have a formal, administered oath.

John’s Takeaways

• Know Your Rights (and Rules): Donofrio won because he knew the statute better than the trial judge. He saved himself time and got his jail credit fixed.
• Not All Oaths Are Equal: “Under Oath” is a slippery term. Sometimes it means a notary; sometimes it just means signing a perjury clause. Knowing the difference can save a motion from being thrown in the trash.
• Too Much Information? Maybe. But in this case, having just the right amount of technical information was exactly what the client needed.

Stuck on a Technicality?

If your motion was denied because of a missing stamp or a technicality, don’t give up. The law is full of exceptions.

Call me at (407) 423-1117. Let’s find the rule that works for you.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.