STEVEN HULETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred in denying a pro se defendant's motion to withdraw his plea without holding an evidentiary hearing, as the motion raised a colorable claim under the correct rule.
Defendant filed a pro se motion to withdraw his plea after sentencing, mistakenly citing rule 3.170(f). The trial court denied the motion without a he…
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POLEN, C.J.
We hold the trial court erred in denying Hulett’s pro se post-conviction motion to withdraw his plea without holding an evidentiary hearing. The record reflects Hu-lett’s motion was filed purportedly pursuant to Florida Rule of Criminal Procedure 3.170(f). Hulett, acting pro se, failed to realize rule 3.170(f) only applies to motions filed before sentencing. In adopting the arguments advanced by the state, the trial court found it had no basis to rule on Hulett’s motion under rule 3.170(f) because sentencing had already occurred, and denied his motion without addressing its merits.
Although rule 3.170(f) did not provide the trial court with a basis to rule on Hulett’s motion, rule 3.170(i) did where the motion was filed within thirty (30) days of sentencing. On similar facts, this court recently held where a pro se litigant mistakenly cited rule 3.170(f) instead of 3.170(£) in moving for post-sentencing relief, the litigant should not have been penalized for such and the trial court should have addressed the merits of his motion. See Ventura v. State, 820 So. 2d 1026, 1027 (Fla. 4th DCA 2002)(recognizing hearing on motion filed under rule 3.170 is a critical stage in the criminal proceedings). Hulett’s motion, which raises allegations his plea was involuntary, raises a colorable claim under rule 3.170(£). Fla. R.App. P. 9.140(b)(2)(A)(ii)(c) 1 As such, we hold Hu-lett was entitled to a hearing on the merits of his post-sentencing motion to withdraw his plea and accordingly reverse and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
GUNTHER and WARNER, JJ„ concur. . Florida Rule of Criminal Procedure 3.170(1) contains a scrivener's error. The cross reference in that rule to Florida Rule of Appellate Procedure 9.140(b)(2)(B)(I)-(v) should actually be to rule 9.140(b)(2)(A)(ii)(a)-(e). See Roesch v. State, 819 So. 2d 862, 863 n. 1 (Fla. 1st DCA 2002).
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Citator
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Lomelin-Flores v. State, 21 So. 3d 918 (Fla. 4th DCA 2009)…have treated the defendant’s motion as one filed pursuant to Florida Rule of Criminal Procedure 3.170(0, governing motions to withdraw plea filed after the imposition of sentence, and ruled on the merits of the claims asserted. See Hulett v. State, 830 So. 2d 243, 244 (Fla. 4th DCA 2002). Nonetheless, we affirm the summary denial as the claims asserted in the motion are either conclusively refuted by the record or facially insufficient. See Sheppard v. State, 17 So. 3d 275, 287 (Fla. 2009) (holding that tria…
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Mourra v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)…rawal of pleas prior to sentencing. Because the motion was filed after sentencing but within thirty days from the entry of the judgments, the trial court properly treated the motion as one filed in accordance with rule 3.170(1). See Hulett v. State, 830 So. 2d 243, 244 (Fla. 4th DCA 2002). . Of course, the issues raised in a rule 3.170(Z) motion may generate a conflict between the original trial lawyer and his or her client. Under those circumstances, the court may be required to appoint substitute counsel f…
Authorities Cited
- Immer Eliezer Ventura v. State, 820 So. 2d 1026 (Fla. 4th DCA 2002)
- Roesch v. State, 819 So. 2d 862 (Fla. 1st DCA 2002)