JOHN R. LEPPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lepper appeals the trial court's denial of his motion to withdraw a guilty plea. The appellate court dismissed the appeal without prejudice because the trial court lacked jurisdiction to consider the motion, which was filed outside the 30-day window for withdrawal under Rule 3.170(i) and was facially insufficient as a Rule 3.850 postconviction motion.
The trial court lacked jurisdiction to consider the motion because it was filed outside the 30-day window under Rule 3.170(i) and did not meet the requirements of Rule 3.850. The order denying the motion was void, and the appeal should be dismissed without prejudice to allow Lepper to file a timely and sufficient postconviction motion.
[1] A trial court order is void when the court lacks jurisdiction to enter it.
[2] An appellate court must dismiss an appeal from a void order.
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Join FLexlaw to unlock all legal intelligence“if a court's lack of jurisdiction becomes apparent at any stage of proceedings, court is bound to enter appropriate order remedying defect”
Establishes the principle that courts must address jurisdictional defects when they appear during proceedings
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Join FLexlaw to unlock all legal intelligenceLepper pleaded no contest to DUI manslaughter on March 19, 2001, was sentenced on May 1, 2001, and the written judgment was rendered May 8, 2001. On J…
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ORDER DISMISSING APPEAL WITHOUT PREJUDICE TO FILING OF TIMELY MOTION PURSUANT TO RULE 3.850
WHATLEY, Judge.
John R. Lepper appeals an order disposing of a motion that the trial court had no authority to consider. At an earlier time, this court decided to treat this case as an appeal from an order denying a motion filed pursuant to rule 3.850. In the motion Mr. Lepper claimed that his plea was unknowing and involuntary because it was based on erroneous advice of counsel. On its own motion, this court concludes that the trial court order is void and that the relevant motion cannot be treated as if it were a postconviction motion. Cf. Polk County v. Sofka, 702 So. 2d 1243 (Fla.1997) (finding that if a court’s lack of jurisdiction becomes apparent at any stage of proceedings, court is bound to enter appropriate order remedying defect); Bothtuell v. State, 450 So. 2d 1150 (Fla. 2d DCA 1984) (finding trial court lacked jurisdiction to enter order awarding costs on untimely motion, thus order was void). We conclude that the void order should be stricken and this appeal dismissed without prejudice to Mr. Lepper’s right to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.
Mr. Lepper pleaded no contest to DUI manslaughter on March 19, 2001. He was sentenced on May 1, 2001, and the written judgment and sentence were rendered May 8, 2001. On June 22, 2001, Mr. Lep-per’s newly retained attorney filed a motion to withdraw plea. The motion did not state pursuant to what rule it was filed. The motion did not meet the requirements of rule 3.850, and it appears from the record that the trial court proceeded as though the motion was filed pursuant to rule 3.170(i). That rule allows a defendant to attempt to withdraw a plea within 30 days after rendition of sentence. Because, as Mr. Lepper now acknowledges, this motion was filed outside of that 30-day window, the trial court had no authority to consider it.
The motion filed by counsel in this case generally alleges that Mr. Lepper’s plea was involuntary. The motion is not sworn and is not sufficient for purposes of rule 3.850. Occasionally, we treat motions similar to this motion as if they were proper postconviction motions. In this case, however, because the motion is facially insufficient, it cannot be treated as one for post-conviction relief.
The trial court did not elect to treat this motion as if it were filed pursuant to rule 3.850. Instead, the trial court discussed the merits of the motion and denied it as filed under rule 3.170(i). Because this motion could not be treated as a postcon-viction motion, the trial court should have stricken it as untimely and unauthorized.
If we reviewed the merits of this appeal, it might prejudice Mr. Lepper’s ability to file a timely and sufficient postconviction motion because his next motion might be deemed successive. Accordingly, we dismiss this appeal as an appeal from a void order. Dismissed.
GREEN and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kelly v. State, 907 So. 2d 550 (Fla. 3d DCA 2005)…lea under Rule 3.170(f) also allows the withdrawal of a plea only before a sentence is rendered, and a motion to withdraw under Rule 3.170(Z) only allows the withdrawal of a plea within thirty days after a sentence is rendered. Id.; Lepper v. State, 826 So. 2d 363 (Fla. 2d DCA 2002)(explaining that a trial court has no authority to consider a motion to withdraw pursuant to Rule 3.170(7) that is filed outside of the 30-day window). As the defendant's motion to withdraw was filed more than thirty days (but less…
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Hughon Brown v. State, 929 So. 2d 675 (Fla. 5th DCA 2006)…even if the trial court could have treated this as a motion filed pursuant to Rules 3.800 or 3.850, it would, have been untimely because it was not filed within two years of sentencing. Fla. R.Crim. P. 3.850(b). In a similar case, Lepper v. State, 826 So. 2d 363 (Fla. 2d DCA 2002), the defendant filed an untimely motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170. The trial court denied the motion on the merits. The appellate court found that the motion was unauthorized and therefore…
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Wiggs v. State, 952 So. 2d 610 (Fla. 2d DCA 2007)…STRINGER, Judge. We affirm Wiggs’ convictions and sentences without prejudice to Wiggs filing a timely and facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. See Lepper v. State, 826 So. 2d 363 (Fla. 2d DCA 2002). Affirmed. CANADY, J., and THREADGILL, EDWARD F., Jr., Senior Judge, Concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Polk Cnty. v. Sofka, 702 So. 2d 1243 (Fla. 1997)
- Bothwell v. State, 450 So. 2d 1150 (Fla. 2d DCA 1984)