JAMES MURRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Murray appeals the trial court's denial of his pro se motion to withdraw his guilty plea. The court confused whether the motion was filed under Florida Rule of Criminal Procedure 3.170(7) or 3.850, treating it as a nullity under the former but then disposing of it on the merits under the latter. The appellate court reversed, holding that a timely pro se motion under rule 3.170(7) filed while the defendant is still represented by appointed counsel must be stricken as a nullity and not considered as any other type of motion.
A timely rule 3.170(7) motion filed pro se while the defendant is still represented by appointed counsel is a nullity which must be stricken and should not be considered or disposed of by the trial court as any other type of motion. The trial court erred by treating the motion as filed under rule 3.850 and disposing of it on the merits, as doing so could limit the defendant's right to file a well-conceived rule 3.850 motion within the two-year period allowed.
[1] A pro se motion filed by a defendant still represented by appointed counsel is a nullity that must be stricken and cannot be considered by the trial court as any other ty…
[2] A motion filed with prison officials is considered timely if delivered within the prescribed period, even if it arrives in the trial court after the appeal deadline.
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Join FLexlaw to unlock all legal intelligence“A timely rule 3.170(Z) motion filed pro se while the defendant is still represented by appointed counsel is a nullity which must be stricken and should not be considered by the trial court as any other type of motion.”
Establishes the core holding that such pro se motions must be stricken as nullities rather than converted into other types of motions.
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Join FLexlaw to unlock all legal intelligenceJames Murray filed a pro se motion to withdraw his plea exactly thirty days after his sentence was rendered while still represented by appointed couns…
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ALTENBERND, Judge.
James Murray appeals the trial court’s order denying his pro se motion to withdraw plea. The motion does not state whether Mr. Murray intended to file the motion as one pursuant to Florida Rule of Criminal Procedure 3.170(Z) or Florida Rule of Criminal Procedure 3.850. It was delivered to prison officials exactly thirty days after his sentence was rendered and was timely as a motion pursuant to rule 3.170(7). It does not contain the content required by rule 3.850(c). The motion technically was “filed” with the prison while Mr. Murray was still represented by appointed counsel, and that counsel did not file a notice of appeal. The motion did not arrive in the trial court until after the time to appeal had expired, unless the motion stayed rendition for appeal. See Fla. R.App. P. 9.020(h).
The trial court was understandably confused as to whether to treat this motion as filed pursuant to rule 3.170(7) or 3.850. It decided to treat the motion as a nullity under rule 3.170(7), but then treated it as a motion for postconviction relief filed pursuant to rule 3.850 and summarily denied the motion.
We conclude that the trial court correctly treated the motion as a nullity under rule 3.170(Z), but that the court should not have proceeded to dispose of the motion under rule 3.850. A timely rule 3.170(Z) motion filed pro se while the defendant is still represented by appointed counsel is a nullity which must be stricken and should not be considered by the trial court as any other type of motion. See Sharp v. State, 884 So. 2d 510 (Fla. 2d DCA 2004); Mourra v. State, 884 So. 2d 316 (Fla. 2d DCA), review denied, 891 So. 2d 552 (Fla.2004). We have the luxury of Mr. Murray’s brief, which the trial court did not have. It explains that he filed the motion with virtually no preparation because he understood that he only had thirty days in which to file the motion. If the motion is treated as filed under rule 3.850, it may serve to limit Mr. Murray’s right to file a well-conceived motion during the two years allowed for such a motion. We continue to believe that such motions should simply be stricken.
Accordingly, we reverse the trial court to the extent that the order treats the motion as one filed pursuant to rule 3.850 and disposes of it on the merits under that rule. Our decision is without prejudice to any right Mr. Murray may have to seek timely relief pursuant to a sworn rule 3.850 motion.
We note that the trial court, while explaining its ruling on the motion under rule 3.850, stated that this court in Mourra held that the failure to file a timely rule 3.170(7) motion prevents a claim of involuntary plea from being raised in a rule 3.850 motion unless the claim alleges that the plea is involuntary due to the ineffective assistance of trial counsel. This court did not so hold, but only remarked as to the uncertainty of the state of the law in this area:
Thus, although the case law is not well developed, the creation of rule 3.170(7) may significantly limit the issues that can be raised under rule 3.850 regarding the withdrawal of a plea.
Mourra, 884 So. 2d at 319 (emphasis added) (citations omitted).
Reversed and remanded with directions.
CASANUEVA and SILBERMAN, JJ., Concur.
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Citator
Cited By
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Youngblood v. State, 930 So. 2d 852 (Fla. 2d DCA 2006)…thdraw that plea within thirty days after rendition of the sentence. We reverse and remand. The failure to file a timely rule 3.170(¿) motion does not prevent an involuntary plea claim from being raised in a rule 3.850 motion. See Murray v. State, 909 So. 2d 998 (Fla. 2d DCA 2005). Moreover, the record attached to the postconviction court’s order suggests that Youngblood is entitled to relief because the State and defense counsel advised him that he would be transported to the Department of Corrections (DOC…
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Applegate v. State, 23 So. 3d 211 (Fla. 2d DCA 2009)…e, 831 So. 2d 716, 717 (Fla. 5th DCA 2002) (holding that rule 3.170(i) was proper vehicle to challenge plea where defendant filed motion claiming defendant did not understand consequences of plea within thirty days of sentence); cf. Murray v. State, 909 So. 2d 998, 999 (Fla. 2d DCA 2005) (holding that where motion to withdraw plea filed within thirty days of sentence did not state whether it was filed pursuant to rule 3.170(Z) or rule 3.850, court erred in disposing of it under rule 3.850). A motion under ru…
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LaBOY v. State, 989 So. 2d 702 (Fla. 4th DCA 2008)…The dismissal of appellant’s rule 3.170(i) motion as untimely is affirmed without prejudice for appellant to file a motion pursuant to Florida Rule of Criminal Procedure 3.850. See Douze v. State, 945 So. 2d 653 (Fla. 4th DCA 2007); Murray v. State, 909 So. 2d 998 (Fla. 2d DCA 2005); Weidner v. State, 767 So. 2d 604 (Fla. 4th DCA 2000). FARMER, TAYLOR and DAMOORGIAN, JJ., 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
- Bennie Frank Smith v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)
- Kasim McDONALD v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)
- Sharp v. State, 884 So. 2d 510 (Fla. 2d DCA 2004)