SCHERRY MCCLELLAND, A/K/A SHERRY MCCLELLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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ALTENBERND, Judge.
Scherry McClelland appeals a judgment for driving under the influence and causing death (DUI manslaughter), driving while license suspended, and child neglect. The judgment was entered based upon Ms. McClelland’s negotiated plea of guilty to the charges. After the judgment was entered, Ms. McClelland filed a pro se motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(£). The circuit court summarily denied this motion.
We affirm the judgment and sentences but note that the circuit court should have stricken the motion to withdraw plea rather than deny the motion on the merits. See Sheppard v. State, 988 So. 2d 74, 79 (Fla. 2d DCA 2008); Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004). If Ms. McClelland is later able to assert a valid claim for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, the court’s denial of the motion to withdraw plea should not be deemed to have any preclusive effect on the motion for postconviction relief.
Affirmed.
SILBERMAN and LaROSE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sheppard v. State, 17 So. 3d 275 (Fla. 2009)…Second District’s opinions that have followed Sheppard to the extent that they conflict with this decision. See Sumbry v. State, 3 So. 3d 1259 (Fla. 2d DCA 2009) (table); Christiansen v. State, 993 So. 2d 173 (Fla. 2d DCA 2008); McClelland v. State, 995 So. 2d 557 (Fla. 2d DCA 2008). FACTS AND PROCEDURAL BACKGROUND Sheppard pled guilty to violating his community control previously imposed for convictions of two counts of uttering a forged instrument — a third-degree felony. The State offered Sheppard “a yea…
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Christiansen v. State, 993 So. 2d 173 (Fla. 2d DCA 2008)…2005), and Peterson v. State, 881 So. 2d 1129 (Fla. 4th DCA 2004)), review granted, No. SC08-1452, 990 So. 2d 1060, 2008 WL 4551389 (Fla. Sept. 29, 2008) (table); Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004); see also McClelland v. State, 995 So. 2d 557, 557, 2008 WL 4092796 (Fla. 2d DCA Sept. 5, 2008) (citing Sheppard and Mourra). Thus, we affirm the judgment and sentence, reverse the denial of the pro se motion to withdraw plea, and remand for the trial court to strike the pro se motion. As we di…
Authorities 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)
- Sheppard v. State, 988 So. 2d 74 (Fla. 2d DCA 2008)