DEVON BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Devon Brown appeals the trial court's denial of his motion to withdraw a no contest plea and challenges his sentence. The appellate court affirmed the denial of the withdrawal motion because it was procedurally deficient, and dismissed the sentencing appeal for lack of jurisdiction due to untimely filing.
The trial court properly denied the motion to withdraw the plea because Brown filed it after sentencing and failed to comply with the procedural requirements for post-conviction relief motions under Florida Rule of Criminal Procedure 3.850. The appellate court lacked jurisdiction to consider the sentencing appeal because Brown's notice of appeal was untimely filed outside the 30-day period from final judgment.
[1] A motion to withdraw a plea filed after sentencing must comply with the requirements of rule 3.850 of the Florida Rules of Criminal Procedure.
[2] A motion for post-conviction relief under rule 3.850 must be under oath and include the requisite contents set out in rule 3.850(c).
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Join FLexlaw to unlock all legal intelligence“The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.”
Establishes that motions to withdraw guilty pleas must be filed before sentencing, making Brown's post-sentencing motion procedurally deficient.
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Join FLexlaw to unlock all legal intelligenceOn July 14, 1994, Devon Brown entered a written plea of no contest and was sentenced on multiple charges including sale and possession of cocaine, bat…
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POLEN, Judge.
On July 14, 1994, Devon Brown entered a written plea of no contest, and was sentenced in ease numbers 94-164-CFA (sale of cocaine and possession of cocaine), 94-62-MMA (simple battery and resisting arrest without violence), 92-216-CFA (violation of probation on sale of cocaine), 94-133-MMA (resisting arrest without violence), and 93-3031-TT (violation of probation and failure to appear). On July 18, 1994, Brown moved to withdraw his plea alleging that he did not understand the consequences of it. A hearing was held, and the trial court denied the motion on the merits. Brown appeals from the denial of this motion and the sentence imposed. We affirm, without prejudice as set forth below.
Brown’s motion to withdraw his plea was brought pursuant to rule 3.170 and rule 3.172 of the Florida Rules of Criminal Procedure. Rule 3.170 provides in pertinent part:
The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn. ...
Because Brown had already been sentenced, he should have filed a motion pursuant to rule 3.850. His motion could not be considered a proper motion pursuant to rule 3.850. It was not under oath, nor did it include any of the requisite contents set out in rule 3.850(c). Thus, the trial court properly denied the motion based on its legal insufficiency. See McCain v. State, 459 So. 2d 1185 (Fla. 4th DCA 1984) (affirming the trial court’s denial of the appellant’s motion for post-conviction relief without prejudice to file a motion in compliance with rule 3.850, where the appellant failed to comply with the requirements set out in rule 3.850). Accordingly, we affirm without prejudice to Brown filing a proper 3.850 motion.
Brown also appealed his sentence in case number 94-164-CFA, contending that it was incorrectly computed pursuant to the sentencing guidelines. However, we do not have jurisdiction to consider this issue because Brown did not timely appeal from the final judgment and sentence. His notice of appeal was filed on August 17, 1994. The final judgments and sentences which Brown is appealing were rendered on July 14, 1994. Thirty days expired on Monday, August 15, 1994. Brown’s counsel might have been under the impression that the post-judgment motion delayed rendition. However, this is not a motion which delays rendition pursuant to Florida Rule of Appellate Procedure 9.020(g). However, Brown can still file any motions available as to the legality of the sentence. Accordingly, we affirm the denial of Brown’s motion to withdraw his plea and are without jurisdiction to consider the appeal from Brown’s sentence.
STEVENSON, J., and SCHAPIRO, SHELDON, Associate Judge, concur.
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Citator
Cited By (11 total)
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Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997)…eet total had been, as the defendant contends here, then that is an attack on the voluntary and intelligent character of'the plea which is a claim that must be brought by a timely 3.850 motion to withdraw the plea in the trial court. Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995), review denied, 668 So. 2d 602 (Fla.1996); Barnes v. State, 643 So. 2d 83 (Fla. 3d DCA 1994); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991); Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991). As stated above, this 3.850…
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Lawson v. State, 754 So. 2d 86 (Fla. 4th DCA 2000)…judice. See Anderson v. State, 627 So. 2d 1170, 1171 (Fla.1993). Accordingly, we affirm without prejudice to the appellant’s timely refiling of a properly sworn motion. See, e.g., Steele v. State, 705 So. 2d 1058 (Fla. 4th DCA 1998); Brown v. State, 661 So. 2d 95, 96 (Fla. 4th DCA 1995), rev. denied, 668 So. 2d 602 (Fla.1996); Stoutamire v. State, 710 So. 2d 744 (Fla. 1st DCA 1998). FARMER, KLEIN and HAZOURI, JJ„ concur.…
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Thomas v. State, 686 So. 2d 699 (Fla. 4th DCA 1996)…subsections of rule 3.850. Compare Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993) (failure of notary section of motion to comport with technical requirements of notary statute not basis for summary denial of 3.850 relief) with Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995) (trial court properly denied motion as legally insufficient where it neither was under oath nor included requisite contents of rule 3.850(c)), review denied, 668 So. 2d 602 (Fla.1996). We agree, however, that the trial court’s or…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCAIN v. State, 459 So. 2d 1185 (Fla. 4th DCA 1984)