JAMES MINGO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Mingo appealed his convictions for drug delivery near a church and cocaine possession. The appellate court affirmed the convictions and sentences but remanded for the trial court to correct its procedural error by dismissing (rather than denying) Mingo's motion to withdraw his plea, which was filed after the notice of appeal divested the trial court of jurisdiction.
The trial court lacked jurisdiction to consider Mingo's motion because it was filed after the notice of appeal, which divested the trial court of jurisdiction. Additionally, the trial court lacked authority to consider the pro se motion because Mingo remained represented by counsel. The trial court should have dismissed the motion rather than denied it.
[1] A trial court lacks jurisdiction to consider a motion to withdraw a plea filed after the notice of appeal has been filed.
[2] A pro se motion filed by a defendant who is still represented by counsel of record is an unauthorized pleading and should be treated as a nullity.
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Join FLexlaw to unlock all legal intelligence“Because Mingo filed his pro se motion to withdraw plea after he filed his notice of appeal, the trial court was without jurisdiction to consider that motion.”
Establishes the primary jurisdictional basis for reversing the trial court's denial of the motion—filing a notice of appeal divests the trial court of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceJames Mingo was convicted of delivery of a controlled substance within 1000 feet of a church and possession of cocaine. After filing his notice of app…
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DAVIS, Judge.
In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for James Mingo challenges Mingo’s convictions for delivery of a controlled substance within 1000 feet of a church and possession of cocaine. While we affirm Mingo’s convictions and sentences without comment, we remand with directions to the trial court to enter an order dismissing, not denying, Mingo’s motion to withdraw plea.
Because Mingo filed his pro se motion to withdraw plea after he filed his notice of appeal, the trial court was without jurisdiction to consider that motion. See Sharp v. State, 884 So. 2d 510, 512 (Fla. 2d DCA 2004). The filing of the notice of appeal divested the trial court of jurisdiction to rule on the subsequently filed motion, and the court should have dismissed the motion on that ground.
The trial court also lacked the authority to consider Mingo’s pro se motion to withdraw plea because, at the time that Mingo filed the motion, he was represented by counsel. His counsel had not yet filed the written directions to the clerk, the designations to the court reporter, or the judicial acts to be reviewed forms, all of which are required to be filed before counsel is considered to have withdrawn. See Fla. R.App. P. 9.140(d)(1)(D). Because Mingo still had counsel of record at the time that he filed his pro se motion to withdraw plea and he did not move to discharge his counsel, his motion should have been stricken as an unauthorized pro se pleading and treated as a nullity. See Sharp, 884 So. 2d at 512; Mourra v. State, 884 So. 2d 316 (Fla. 2d DCA 2004), review denied, 891 So. 2d 552 (Fla.2004).
However, rather than striking the motion or dismissing it for lack of jurisdiction, the trial court denied the motion, thereby inaccurately implying that it entered a substantive ruling on the merits of the motion. Therefore, while we affirm Min-go’s convictions and sentences, we remand with directions for the trial court to withdraw the earlier denial of Mingo’s motion to withdraw plea and to enter in its place an order dismissing that motion.
Affirmed; remanded with directions.
SILBERMAN and LaROSE, JJ., Concur.
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Adkinson v. State, 36 So. 3d 836 (Fla. 1st DCA 2010)…otion. Id. By contrast, in this case, the motion to withdraw the plea was filed after the notice of appeal, which divested the trial court of jurisdiction to consider the motion. See Hines v. State, 32 So. 3d 678 (Fla. 1st DCA 2010); Mingo v. State, 914 So. 2d 1070 (Fla. 2d DCA 2005); McCray v. State, 840 So. 2d 274 (Fla. 4th DCA 2003). Because the trial court was without jurisdiction to consider Appellant’s motion to withdraw plea, the trial court should have [*837] dismissed the motion rather than denying i…
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Young v. State, 950 So. 2d 516 (Fla. 2d DCA 2007)…B). In this, appeal, Young argues that because he filed his motion to withdraw plea after he filed the notice of appeal, the trial court should have dismissed the motion for lack of jurisdiction rather than denying it. We agree. See Mingo v. State, 914 So. 2d 1070 (Fla. 2d DCA 2005). Young also argues that Judge Luce erred in sentencing him when no necessity was shown for a judge other than the judge who accepted his plea to sentence him. See Fla. R.Crim. P. 3.700(c)(1). Although the State notes that defense…
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Tazarious Vonellis Hawthorne v. State, 226 So. 3d 292 (Fla. 2d DCA 2017)…er he filed a notice of appeal of his judgment and sentences. Because the filing of a notice of appeal divests the trial court of jurisdiction, the trial court should have dismissed the motion on that basis instead of denying it. See Mingo v. State, 914 So. 2d 1070, 1070 (Fla. 2d DCA 2005); Wilson v. State, 814 So. 2d 1203, 1204 (Fla. 2d DCA 2002). Inasmuch as the trial court was without jurisdiction to reach the merits of Mr. Hawthorne’s pro se motion, we must remand with instructions for the trial court to v…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- 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)