PATRICK SMALLWOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court improperly denied the appellant's claim of ineffective assistance of counsel regarding misadvice about sentence length as untimely.
The appellant challenged the denial of his motion alleging ineffective assistance of counsel. The trial court denied the motion as untimely, including…
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ON MOTION FOR REHEARING
PER CURIAM.
Upon consideration of the appellant’s motion for rehearing, we withdraw the original opinion and issue the following opinion.
The appellant challenges the trial court’s order denying his motion alleging ineffective assistance of counsel filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court improperly denied the appellant’s first claim, that his counsel misadvised him of the length of his sentence, as untimely, we reverse its ruling. Although the trial court likewise erroneously denied the entire motion as untimely, all other issues are affirmed without further discussion because the claims were facially insufficient. See Robertson v. State, 829 So. 2d 901, 906-07 (Fla.2002).
A timely motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170 delays rendition of the final order imposing judgment and sentence until the trial court files a signed, written order disposing of the motion. Fla. R.App. P. 9.020(h); see Wofford v. State, 866 So. 2d 774, 775 (Fla. 1st DCA 2004). Therefore, the appellant’s timely motion to withdraw his plea delayed rendition of his judgment and sentence and the instant motion was timely filed within two years.
The appellant’s claim is facially sufficient: he alleges his counsel proffered misadvice about the length of his sentence and he would not have pled but for counsel’s misadvice. See Brazeail v. State, 821 So. 2d 364, 368 (Fla. 1st DCA 2002); Ash v. State, 767 So. 2d 1260, 1261 (Fla. 1st DCA 2000).
We, therefore, reverse the trial court’s summary denial of the appellant’s first claim and remand to address the claim on the merits or attach record portions conclusively refuting his claim. All other issues are affirmed without comment.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
KAHN, C.J., BROWNING and THOMAS, JJ., concur.
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Brigham v. State, 950 So. 2d 1274 (Fla. 2d DCA 2007)…withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170 delays rendition of the final order imposing judgment and sentence until the trial court files a signed, written order disposing of the motion.” Smallwood v. State, 911 So. 2d 849, 850 (Fla. 1st DCA 2005); see also Fla. R.App. P. 9.020(h). Because Brigham’s motion was premature, we affirm the court’s dismissal with respect to case CRC02-09197CFANO-M. On remand, the court shall rule on Brigham’s November 4, 2002, motion to wit…
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Haber v. State, 961 So. 2d 1098 (Fla. 2d DCA 2007)…ow that Mr. Haber’s attorney filed a timely motion to withdraw plea. Such a motion delays rendition of the judgment and sentence until the court files a signed, written order disposing of the motion. See Fla. R.Crim. P. 3.170(Z); Smallwood v. State, 911 So. 2d 849, 850 (Fla. 1st DCA 2005). Because Mr. Haber’s judgment and sentence apparently never became final, Mr. Haber’s rule 3.850 motion was premature. See Brigham v. State, 950 So. 2d 1274, 1276 (Fla. 2d DCA 2007). Therefore, the circuit court should have…
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Williams v. State, 215 So. 3d 642 (Fla. 5th DCA 2017)…t files a signed, written order disposing of the motion. Wilson v. State, 128 So. 3d 898, 899 (Fla. 4th DCA 2013) (citing Fla. R. App. P. 9.020(i)(1)); Haber v. State, 961 So. 2d 1098, 1099 (Fla. 2d DCA 2007) (citations omitted); Smallwood v. State, 911 So. 2d 849, 850 (Fla. 1st DCA 2005) (citations omitted). Rule 3.850(b) provides, in pertinent part, that “[a] motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to…
Authorities Cited
- Swett v. State, 829 So. 2d 901 (Fla. 2002)
- Robertson v. State, 829 So. 2d 901 (Fla. 2002)
- Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002)
- Cullins v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000)
- ASH v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000)
- Fla. Dep't OF Transp. v. MID Continent Elec., 866 So. 2d 774 (Fla. 1st DCA 2004)
- Wofford v. State of Fla. & James V. Crosby, Jr., 866 So. 2d 774 (Fla. 1st DCA 2004)