SCOTT HABER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott Haber sought relief under Florida Rule of Criminal Procedure 3.850, claiming his counsel was ineffective for failing to file a motion to withdraw his guilty plea to battery on a disabled person. The court found that counsel had actually filed a timely motion to withdraw plea, which delayed finality of the judgment, making Haber's 3.850 motion premature and requiring dismissal rather than denial.
The court reversed the denial of Haber's 3.850 motion and remanded for dismissal, holding that because the attorney filed a timely motion to withdraw plea, judgment and sentence never became final, making the 3.850 motion premature and subject to dismissal rather than denial.
[1] A motion to withdraw a plea, when timely filed, delays rendition of the judgment and sentence until the court files a signed, written order disposing of the motion.
[2] A premature motion for postconviction relief should be dismissed rather than denied.
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Join FLexlaw to unlock all legal intelligence“Such a motion delays rendition of the judgment and sentence until the court files a signed, written order disposing of the motion.”
Establishes that timely filing of a motion to withdraw plea prevents judgment from becoming final
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Join FLexlaw to unlock all legal intelligenceIn February 2006, Haber filed a pro se motion to withdraw his plea after admitting to violating probation and receiving a five-year sentence for batte…
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NORTHCUTT, Chief Judge.
In February 2006, Scott Haber filed a timely motion to withdraw his plea after he admitted violating probation and was sentenced to five years in prison for battery on a disabled person. The trial court struck the motion on the ground that Mr. Haber was represented by an attorney and did not request withdrawal of counsel, citing Sharp v. State, 884 So. 2d 510, 511-12 (Fla. 2d DCA 2004), and Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004).
Mr. Haber apparently then became aware that his attorney had filed a motion to withdraw plea on his behalf. On several occasions, he inquired of the clerk of the circuit court what had become of this motion. In several responses, the clerk in formed Mr. Haber that his pro se motion was struck (which Mr. Haber knew) and, finally, that his attorney had not filed a motion on his behalf. Upon learning that his attorney had never filed a motion to withdraw plea, Mr. Haber sought relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming that his counsel was ineffective for failing to file the motion as requested. In amendments to his motion, Mr. Haber filed the clerk’s replies to his inquiries as well as a file copy of his attorney’s motion.
The circuit court denied Mr. Haber’s motion on the ironic ground that his attorney had actually filed a motion to withdraw plea. Attached to the order denying the rule 3.850 motion was a copy of the attorney’s motion to withdraw plea, bearing a stamp indicating that it had been timely filed with the clerk. Although this document absolutely refuted Mr. Haber’s claim that his counsel was ineffective for failing to file a motion to withdraw plea, the circuit court’s failure to rule on the motion as well as the clerk’s denial that it had ever been filed remain shrouded in mystery.
Although that mystery might never be solved, we do now know 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 dismissed rather than denied the motion. Id.
Accordingly, we reverse the order denying Mr. Haber’s motion pursuant to rule 3.850 and remand for the circuit court to dismiss it. On remand, if it has not already done so, the circuit court shall rule upon the motion to withdraw plea filed by Mr. Haber’s counsel.
Reversed and remanded.
WHATLEY and VILLANTI, JJ., Concur.
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Clemons v. State, 3 So. 3d 364 (Fla. 2d DCA 2009)…774, 775 (Fla. 1st DCA 2004) (granting belated appeal to proceed as seeking review of the underlying judgment and sentence for which rendition was postponed pending order denying defendant’s timely motion to withdraw plea); see also Haber v. State, 961 So. 2d 1098 (Fla. 2d DCA 2007) (recognizing principle in regard to issue concerning whether subsequent rule 3.850 motion was timely). Clemons’ appeal following the oral denial of his motion to withdraw plea was premature. See Fla. R.App. P. 9.020(h)(3). However…
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Bertran Wilson v. State, 128 So. 3d 898 (Fla. 4th DCA 2013)…sentence have not yet become final, the time for filing a rule 3.850 motion has not yet begun to run, and the rule 3.850 motion should have been dismissed as premature. See Landell v. State, 88 So. 3d 413, 414-15 (Fla. 4th DCA 2012); Haber v. State, 961 So. 2d 1098 (Fla. 2d DCA 2007). Accordingly, we reverse the order denying Wilson’s premature rule 3.850 motion and remand for the trial court to dismiss it and to rule on his timely rule 3.170(£) motion to withdraw plea. Reversed and Remanded. TAYLOR, LE…
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Camon v. State, 57 So. 3d 972 (Fla. 3d DCA 2011)…ee also Clemons v. State, 3 So. 3d 364, 365 (Fla. 2d DCA 2009) (“A timely motion to withdraw plea delays rendition of a defendant’s judgment and sentence until the trial court files a signed, written order disposing of the motion.”); Haber v. State, 961 So. 2d 1098, 1099 (Fla. 2d DCA 2007) (“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…
Previewing 3 of 5 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)
- Brigham v. State, 950 So. 2d 1274 (Fla. 2d DCA 2007)
- Smallwood v. State, 911 So. 2d 849 (Fla. 1st DCA 2005)