CESAR LOMELIN-FLORES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's pro se motion to withdraw his no contest plea to DUI manslaughter, filed within thirty days after sentencing, should have been treated as a post-sentence motion under Rule 3.170(o) rather than summarily denied as untimely, but the motion is affirmed because the claims are conclusively refuted by the record or facially insufficient.
A motion to withdraw a plea filed within thirty days after sentencing must be treated as a post-sentence motion under Florida Rule of Criminal Procedure 3.170(o) and ruled on the merits, but may be affirmed if the claims are conclusively refuted by the record or facially insufficient.
[1] A motion to withdraw a plea filed within thirty days after sentencing must be treated as a post-sentence motion under Florida Rule of Criminal Procedure 3.170(o) and rule…
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Join FLexlaw to unlock all legal intelligenceCesar Lomelin-Flores entered a no contest plea to DUI manslaughter and driving with a suspended license, and less than thirty days after sentencing, f…
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Cesar Lomelin-Flores entered a no contest plea to charges of DUI manslaughter and driving with a suspended license. Then, less than thirty days after the imposition of sentence for such offenses, he filed a pro se motion to withdraw plea, citing Florida Rule of Criminal Procedure 3.170(f), governing the withdrawal of pleas prior to the imposition of sentence. The trial court summarily denied the motion as untimely. We agree with Lomelin-Flores’s appellate claim that the trial court should have treated the defendant’s motion as one filed pursuant to Florida Rule of Criminal Procedure 3.170(0, governing motions to withdraw plea filed after the imposition of sentence, and ruled on the merits of the claims asserted. See Hulett v. State, 830 So.2d 243, 244 (Fla. 4th DCA 2002). Nonetheless, we affirm the summary denial as the claims asserted in the motion are either conclusively refuted by the record or facially insufficient. See Sheppard v. State, 17 So.3d 275, 287 (Fla. 2009) (holding that trial court should appoint conflict-free counsel where it has determined, following a limited hearing, that adversarial relationship exists between defendant and current counsel, provided allegations of defendant’s pro se motion are not conclusively refuted by the record).
Affirmed.
POLEN, STEVENSON and GERBER, JJ., concur.
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Citator
Cited By
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Delbert G. Hall v. State, 72 So. 3d 290 (Fla. 4th DCA 2011)
Authorities Cited
- Sheppard v. State, 17 So. 3d 275 (Fla. 2009)
- Hulett v. State, 830 So. 2d 243 (Fla. 4th DCA 2002)