DOUGLAS H. FALLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Douglas Faller appeals the trial court's dismissal of his motion to withdraw a no contest plea, arguing the motion was timely filed. The court reversed, finding that under Florida's prison mailbox rule, Faller's motion placed in prison officials' hands on the twenty-ninth day after sentencing was timely, even though it was date-stamped thirty-two days after sentencing.
The motion was timely filed. Under Florida Rule of Appellate Procedure 9.420(a)(2), a document filed by a pro se inmate is timely if the inmate places it in an institution official's hands for mailing on or before the deadline, and a certificate of service certifying the date of placement creates a presumption of timely filing.
[1] A motion to withdraw a plea filed by a pro se inmate is timely if the inmate places the document in the hands of an institution official for mailing on or before the last…
[2] A document filed by a pro se inmate is presumed to be timely filed if it contains a certificate of service certifying the date it was given to an institution official for…
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.170(0 allows a convicted defendant thirty days after rendition of sentence to file a motion to withdraw a plea.”
Establishes the relevant statutory deadline for filing motions to withdraw pleas
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Join FLexlaw to unlock all legal intelligenceFaller was incarcerated when he placed his motion to withdraw his no contest plea to nineteen third-degree felony counts into the hands of prison offi…
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Douglas H. Faller challenges the summary dismissal of his pro se motion to withdraw his no contest plea to nineteen third-degree felony counts. The trial court dismissed the motion on the ground that it was untimely filed. The State concedes that the trial court erred in dismissing the motion in Mr. Faller’s circumstances because his motion was timely filed.
Mr. Faller was incarcerated at the time he “filed” his motion by placing it into the hands of prison officials. Florida Rule of Criminal Procedure 3.170(0 allows a convicted defendant thirty days after rendition of sentence to file a motion to withdraw a plea. The certificate of service on Mr. Faller’s motion shows that it was “served,” i.e., given to prison officials, on the twenty-ninth day after his sentencing, a Friday. It was date-stamped by a prison official and postmarked on the thirty-second day, a Monday. According to Florida Rule of Appellate Procedure 9.420(a)(2), this is deemed a timely filing.1
Because the motion should have been considered timely filed, we reverse the dis*1292missal and remand for further proceedings. Despite this reversal, we caution Mr. Faller, who is proceeding'pro se, that should he succeed in withdrawing his plea to a sentence of eight years, four months, he faces the possibility of a much longer sentence should the State prevail at trial.
Order of dismissal reversed and the cause remanded for the trial court to consider Mr. Faller’s motion to withdraw plea.
WHATLEY and LaROSE, JJ., Concur.