PRESTON WALTER BOERNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Preston Walter Boerner appealed his conviction, but the appellate court dismissed the appeal as untimely. The court found that Boerner's motion to withdraw his plea of nolo contendere was filed more than 30 days after sentencing without proper citation to applicable rules, making it untimely under Florida Rule of Criminal Procedure 3.170(l), and that the trial court lacked authority to consider it.
The motion to withdraw plea was untimely under Florida Rule of Criminal Procedure 3.170(l), the trial court lacked authority to consider it, the motion did not delay rendition of judgment, and consequently the notice of appeal was untimely under Florida Rule of Appellate Procedure 9.140(b)(3). Therefore, the appeals are dismissed for lack of jurisdiction.
[1] A motion to withdraw a plea of nolo contendere or vacate judgment and sentence filed more than 30 days after rendition of judgment and sentence is untimely under Florida…
[2] A trial court order denying an untimely motion to withdraw a plea is void because the court lacks authority to consider the merits of such a motion.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the motion to withdraw plea of nolo contendere or vacate judgment and sentence, which failed to cite that it was being filed in accordance with any rule and which was filed more than 30 days after the rendition of the appellant's judgment and sentence, was untimely pursuant to Florida Rule of Criminal Procedure 3.170(l)”
Establishes the basis for finding the motion untimely
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBoerner was convicted and sentenced. More than 30 days after the judgment and sentence was rendered, Boerner filed a motion to withdraw his plea of no…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Untimely Notice Of Appeal cases and more on FLexlaw
PER CURIAM.
Upon consideration of the appellant’s supplemental response to order to show cause, dated June 12, 2007, the Court concludes that the motion to withdraw plea of nolo contendere or vacate judgment and sentence, which failed to cite that it was being filed in accordance with any rule and which was filed more than 30 days after the rendition of the appellant’s judgment and sentence, was untimely pursuant to Florida Rule of Criminal Procedure 3.170(l).
The Court sua sponte concludes that the trial court order which denied the motion is void because the trial court had no authority to consider the merits of the motion.1 See Lepper v. State, 826 So. 2d 363 (Fla. 2d DCA 2002) (citing Polk County v. Sofka, 702 So. 2d 1243 (Fla.1997), which states that if a court’s lack of jurisdiction becomes apparent at any stage of the proceedings, the court should enter an appropriate order to remedy the defect).
It follows that the untimely filed motion to withdraw plea thus failed to delay rendition of 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, filed on July 9, 2007, is denied as moot.
DISMISSED.
ALLEN, WOLF, and LEWIS, JJ., concur. . Notably, the motion was unsworn and therefore could not be treated as a rule 3.850 motion. See Lepper.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Polk Cnty. v. Sofka, 702 So. 2d 1243 (Fla. 1997)
- Lepper v. State, 826 So. 2d 363 (Fla. 2d DCA 2002)
- McGEE v. State, 947 So. 2d 681 (Fla. 2d DCA 2007)