PAUL WEIDNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Weidner pleaded nolo contendere to aggravated battery under a plea agreement, but was later sentenced as a prison releasee reoffender to a mandatory 15-year minimum sentence. Weidner sought to withdraw his plea, claiming he did not fully understand the mandatory sentencing consequences, but his motion was untimely under Florida Criminal Procedure Rule 3.170(Z).
Weidner's motion to withdraw his plea was untimely because it was filed more than thirty days after sentencing, and Florida Rule 3.170(Z) does not permit tolling of the deadline due to a defendant's voluntary absence from the jurisdiction. The trial court properly denied the motion.
[1] A motion to withdraw a guilty plea must be filed within thirty days after rendition of the sentence, and voluntary absence from the jurisdiction does not toll this time p…
[2] A defendant's understanding of the mandatory minimum sentence is a factor in determining the voluntariness of a plea.
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Join FLexlaw to unlock all legal intelligence“Pursuant to rule 3.170(Z), Florida Rules of Criminal Procedure, appellant was required to file his motion to withdraw his plea within thirty days after rendition of the sentence. The rule does not allow for tolling of the time because of the defendant's voluntary absence from the jurisdiction.”
Establishes the strict procedural requirement for timely filing of motions to withdraw pleas and the lack of exceptions for voluntary departure from jurisdiction.
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Join FLexlaw to unlock all legal intelligenceWeidner agreed to plead nolo contendere to aggravated battery in exchange for the state nolle prossing remaining charges. The written plea agreement s…
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SHAHOOD, J.
Appellant, Paul A. Weidner, agreed to plead nolo contendere to the charge of aggravated battery in exchange for the state’s agreement to nolle pros the remaining charges against him. The written plea agreement clearly stated that there, was no minimum mandatory sentence and that the maximum possible penalty was 15 years in prison. At the plea hearing, after appellant announced his intention to enter the plea, the state notified the court that appellant qualified as a prison releasee reof-fender, see § 775.082, Fla. Stat. (1997), and that the “only possible sentence for the Court at this time is 15 years in prison.” Appellant told the court that he understood that aggravated battery was a 15-year felony, but said that he “wasn’t told that that would be the only sentence.” The court was unaware at the time of the plea hearing whether appellant qualified as a prison releasee reoffender, but explained to him,
it’s a mandatory minimum, it’s — if the law requires that, Mr. Weidner, then that’s the Court’s sentence, are you aware of that?
Weidner responded, .“I am now, sir.” After conferring with his attorney, appellant told the court, “I’ll go with the plea, I guess.” The court accepted appellant’s plea, and allowed him to remain out on bond pending sentencing.
Two months later, the sentencing hearing took place. Appellant did not appear, but was sentenced in absentia after it was determined that he had voluntarily left the jurisdiction. The state informed the court that the only possible sentence was 15 years in prison as a reoffender. Defense counsel objected to sentencing appellant in absentia, stating that, in a meeting three weeks prior, appellant had indicated a desire to withdraw his plea because he was under pressure at the time it was entered and did not fully understand the reoffen-der statute. Over the objection, the court stated that it would sentence appellant without addressing the issue of whether the plea was voluntary, and that appellant could raise that issue at a later date. The state presented evidence of appellant’s recent incarceration and release on August 15, 1995, and appellant was sentenced as a reoffender to the minimum mandatory term of 15 years in prison.
Over thirty days later, appellant was found and arrested. He filed a motion to set aside his plea, stating that he never fully understood that he would automatically be sentenced to 15 years in jail and that, had he known, he would not have entered the plea. The trial court denied appellant’s motion. We affirm.
Pursuant to rule 3.170(Z), Florida Rules of Criminal Procedure, appellant was required to file his motion to withdraw his plea within thirty days after rendition of the sentence. The rule does not allow for tolling of the time because of the defendant’s voluntary absence from the jurisdiction. Thus, appellant’s motion was untimely, and the trial court was correct in denying it.
Accordingly, we affirm without prejudice to the appellant’s right to seek 3.850 relief.
AFFIRMED.
DELL and GUNTHER, JJ., concur.
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Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001)…, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850. See Fla.R.App.P. 9.140(b)(2)(B)(ii); Meriweather v. State, 26 Fla.L. Weekly D408, — So. 2d -, 2001 WL 98595 (Fla. 2d DCA 2001); Weidner v. State, 767 So. 2d 604 (Fla. 4th DCA 2000). Courts have characterized the 60 day time limit for reducing or modifying a sentence under rule 3.800(c) as jurisdictional. See, e.g., Knapp v. State, 741 So. 2d 1150 (Fla. 2d DCA 1999); Hussey v. State, 739 So. 2d 123 (Fla. 4…
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Griffin v. State, 114 So. 3d 890 (Fla. 2013)…dant is limited to filing a motion pursuant to applicable Florida Rule of Criminal Procedure 3.850 or 3.851. See, e.g., McKnight v. State, 964 So. 2d 803, 804 (Fla. 3d DCA 2007); Dayton v. State, 867 So. 2d 647 (Fla. 5th DCA 2004); Weidner v. State, 767 So. 2d 604 (Fla. 4th DCA 2000). Therefore, we conclude that the trial court did not abuse its discretion in dismissing Griffin’s rule 3.170(0 motion to withdraw plea and we affirm that ruling. 2. Ineffective Assistance of Counsel Regarding Guilty Plea The t…
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Forrest Bill Dooley v. State, 789 So. 2d 1082 (Fla. 1st DCA 2001)…DCA 2001) (failure to timely file a rule 3.170® motion to challenge a sentence that exceeded the terms of the plea agreement waives the issue for appellate review and the defendant is limited to filing a rule [*1085] 3.850 motion); Weidner v. State, 767 So. 2d 604 (Fla. 4th DCA 2000) (affirming denial of untimely rule 3.170© motion without prejudice to seek relief under rule 3.850). Finally, the logical extension of the state’s argument is that because rule 3.170(0 permits a defendant to file a motion to wit…
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