DOUGLAS MATTHEWS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court lacked jurisdiction to rule on Matthews' motion to withdraw plea filed during pendency of direct appeal; order reversed and remanded for dismissal without prejudice to refiling after appeal concludes.
A trial court is without jurisdiction to rule on a motion to withdraw a plea under Florida Rule of Criminal Procedure 3.800(a) when filed during the pendency of a direct appeal.
[1] A trial court lacks jurisdiction to rule on a motion to withdraw a plea under Florida Rule of Criminal Procedure 3.800(a) when filed during the pendency of a direct appea…
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Join FLexlaw to unlock all legal intelligenceDouglas Matthews filed a motion to withdraw his plea while his direct appeal was pending in the appellate court.…
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SALCINES, Judge.
Douglas Matthews seeks review of the order denying his motion to withdraw plea.1 We reverse.
Matthews’ direct appeal is currently pending in this court; therefore, the circuit court was without jurisdiction to rule on his motion. See Day v. State, 770 So. 2d 1262 (Fla. 1st DCA 2000) (holding that effective January 13, 2000, a party may not file a rule 3.800(a) motion during the pendency of a direct appeal); see also Bunk-ley v. State, 800 So. 2d 663 (Fla. 2d DCA 2001) (holding that a trial court is without jurisdiction to rule on a motion for post-conviction relief during the pendency of a direct appeal). Such a prematurely filed motion must be dismissed by a circuit court and may be refiled after the direct appeal is final. Ortiz v. State, 768 So. 2d 1177 (Fla. 2d DCA 2000). Therefore, we reverse the order of the circuit court and remand with instructions to dismiss Matthews’ motion to withdraw plea without prejudice to any right he may have to refile pursuant to Florida Rule of Criminal Procedure 3.850 after his direct appeal'is final.
Reversed and remanded.
CANADY and VILLANTI, JJ., Concur. . Matthews’ motion to withdraw plea was erroneously filed pursuant to Florida Rule of Criminal Procedure 3.800. Because it was not sworn and signed by Matthews, the circuit court could not treat it as a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.850.
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Rollie L. Baker v. State, 936 So. 2d 1202 (Fla. 2d DCA 2006)…currently pending in this court, the postconviction court did not have jurisdiction to rule on his petition. Rule 3.800(a) specifically provides that a 3.800(a) motion may not be filed “during the pendency of a direct appeal.” See Matthews v. State, 889 So. 2d 893 (Fla. 2d DCA 2004); Schrader v. State, 890 So. 2d 312 (Fla. 2d DCA 2004). We therefore reverse the postconviction court’s order and remand for entry of an order of dismissal. Reversed and remand. WHATLEY, CANADY, and VILLANTI, JJ., Concur.…
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Hogarth v. State, 970 So. 2d 880 (Fla. 1st DCA 2007)…the subject of a pending direct appeal. See McDaniel v. State, 789 So. 2d 1223, 1224 (Fla. 1st DCA 2001). Instead, the trial court should have dismissed the motion with leave to refile after the direct appeal was final. [*881] See Matthews v. State, 889 So. 2d 893 (Fla. 2d DCA 2004). Accordingly, the trial court’s order is reversed and the cause remanded to the trial court with instructions to dismiss the appellant’s motion for lack of jurisdiction without prejudice. REVERSED AND REMANDED. POLSTON, HAWK…
Authorities Cited
- DAY v. State, 770 So. 2d 1262 (Fla. 1st DCA 2000)
- Emmitt Eugene Bunkley v. State, 800 So. 2d 663 (Fla. 2d DCA 2001)
- Nelms v. State, 768 So. 2d 1177 (Fla. 2d DCA 2000)