CHARLES L. MCGEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the notice of appeal was untimely because the defendant's motions to withdraw his plea were filed outside the permissible time frame and did not toll the appellate filing deadline.
The defendant pleaded no contest and was sentenced. He subsequently filed two motions to withdraw his plea, which were denied as untimely. The defenda…
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CANADY, Judge.
Charles L. McGee appeals his judgment and sentence, specifically challenging an order denying his motion to withdraw plea filed after sentencing. Because we lack jurisdiction, we dismiss McGee’s appeal.
On August 24, 2004, McGee pleaded no contest to charges of felony fleeing to elude law enforcement and resisting arrest without violence. In the judgment and sentence rendered August 24, 2004, McGee was sentenced to 71.25 months in prison. On September 29, 2004, McGee filed his motion to withdraw plea. McGee filed a second motion to withdraw plea on October 1, 2004. On August 16, 2005, the trial court denied the motions as untimely since they were filed beyond the 30-day time period set forth in Florida Rule of Criminal Procedure 3.170(1). On October 5, 2005, the trial court denied McGee’s motion for rehearing and clarification with respect to the trial court’s order of August 16, 2005. McGee then filed his notice of appeal on November 2, 2005.
Pursuant to Florida Rule of Appellate Procedure 9.140(b)(3), defendants in criminal cases are required to commence their appeals within 30 days of rendition of a written order imposing sentence. In this case, the time to file an appeal expired on September 23, 2004. If McGee had timely filed his motion to withdraw plea, the time for filing his notice of appeal would have been tolled. See Fla. R.App. P. 9.020(h)(1). However, untimely motions do not toll the time to file an appeal. See Thomas v. State, 884 So. 2d 309, 311 (Fla. 2d DCA 2004). Consequently, McGee’s November 2, 2005, notice of appeal was untimely as to his August 24, 2004, judgment and sentence. We therefore dismiss this appeal for lack of jurisdiction without prejudice to any right McGee might have to file a belated motion pursuant to Florida Rule of Criminal Procedure 3.850.
Dismissed.
ALTENBERND and SALCINES, JJ., Concur.
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Citator
Cited By
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Perrette v. State, 960 So. 2d 888 (Fla. 4th DCA 2007)…als the following. First, the pro se motion to withdraw was timely filed. See Fla. R.Crim. P. 3.170(J). Second, the filing of the motion suspended rendition of the conviction and sentence. This renders the notice of appeal premature. McGee v. State, 947 So. 2d 681, 682 (Fla. 2d DCA 2007). Third, the pro se motion falls within an exception to the general rule preventing a defendant from filing pro se motions while represented by counsel. See Bermudez v. State, 901 So. 2d 981, 984 (Fla. 4th DCA 2005) (pro se m…
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Boerner v. State, 963 So. 2d 357 (Fla. 1st DCA 2007)…the judgment and sentence pursuant to Florida Rule of Appellate Procedure 9.020(h), and consequently the notice of appeal of the judgment and sentence was also untimely pursuant to Florida Rule of Appellate Procedure 9.140(b)(3). See McGee v. State, 947 So. 2d 681 (Fla. 2d DCA 2007). Accordingly, the appeals of the motion to withdraw plea and the judgment and sentence are dismissed. See Lepper, 826 So. 2d at 364. Furthermore, the appellant’s motion for extension of time for filing appellant’s initial brief, f…
Authorities Cited
- Jernigan v. State, 884 So. 2d 309 (Fla. 2d DCA 2004)