JOEL LAWRENCE JAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed the postconviction court's denial of James's motion to withdraw plea, holding that the proper disposition was dismissal without prejudice rather than outright denial, allowing James to refile a properly executed motion under Rule 3.850.
A postconviction motion lacking proper oath under Florida Rule of Criminal Procedure 3.850 must be dismissed without prejudice rather than denied, permitting timely refiling of a facially sufficient motion.
[1] A postconviction motion under Florida Rule of Criminal Procedure 3.850 that lacks proper oath must be dismissed without prejudice rather than denied, preserving the defen…
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Join FLexlaw to unlock all legal intelligenceJoel James appealed a postconviction court's order denying his motion to withdraw his plea without prejudice. The motion was filed outside the thirty-…
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Joel James appeals the postconviction court’s order denying his motion to withdraw plea without prejudice. We fully agree with the postconviction court’s determination that it lacked jurisdiction to entertain James’s motion pursuant to Florida Rule of Criminal Procedure 3.170(Z) because James failed to file the motion within thirty days after rendition of his sentence. See Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001) (noting that the time limit under rule 3.170(0 is jurisdictional). We also agree with the postconviction court’s finding that because the motion lacked the proper oath it could not be considered under Florida Rule of Criminal Procedure 3.850. See Fla. R.Crim. P. 3.850(c) (requiring motion to be under oath); Welch v. State, 946 So.2d 649, 650 (Fla. 2d DCA 2007) (reversing order summarily denying 3.850 motion and remanding for dismissal of motion for lack of proper oath); Morais v. State, 640 So.2d 1227, 1228 (Fla. 2d DCA 1994) (affirming order dismissing 3.850 motion for lack of proper oath). However, the proper disposition of the motion would have been to dismiss the motion without prejudice to James’s timely filing a facially sufficient motion under rule 3.850. See Welch, 946 So.2d at 650; Morais, 640 So.2d at 1228. Accordingly, we reverse the order denying James’s motion and remand for the post-conviction court to enter an order dismissing the motion without prejudice to his timely filing of a facially sufficient motion under rule 3.850.
Reversed and remanded.
CASANUEVA, C.J., and NORTHCUTT, J., Concur.
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Citator
Cited By
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Sanders v. State, 210 So. 3d 98 (Fla. 2d DCA 2016)…Fla. R.App. P. 9.140(b)(2)(A)(ii)(c), (d). For a trial court to have jurisdiction over a defendant’s motion to withdraw plea under rule 3.170(7), the defendant must file the motion within thirty days after rendition of sentence. See James v. State, 12 So. 3d 1290, 1290 (Fla. 2d DCA 2009); Feazell v. State, 115 So. 3d 1045, 1045 (Fla. 4th DCA 2013); Golden v. State, 84 So. 3d 396, 398 (Fla. 1st DCA 2012). Sanders timely filed his original motion to withdraw plea. Thus, the trial court had jurisdiction to ente…
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Davee Feazell v. State, 115 So. 3d 1045 (Fla. 4th DCA 2013)…ate sentence rendered). As a result, the trial eourt never had jurisdiction to rule on the merits of the motion. Bermudez v. State, 901 So. 2d 981, 984 (Fla. 4th DCA 2005); see also Golden v. State, 84 So. 3d 396 (Fla. 1st DCA 2012); James v. State, 12 So. 3d 1290 (Fla. 2d DCA 2009); McKnight v. State, 964 So. 2d 803, 804 (Fla. 3d DCA 2007); Dayton v. State, 867 So. 2d 647 (Fla. 5th DCA 2004). On remand, the order denying appellant’s motion shall be modified to reflect denial was due to lack of jurisdiction.…
Authorities Cited
- Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001)
- Vandervlist v. State, 640 So. 2d 1227 (Fla. 2d DCA 1994)
- Welch v. State, 946 So. 2d 649 (Fla. 2d DCA 2007)