MICHAEL SHANE FRANKLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Franklin's motion to withdraw his plea, filed outside the 30-day window under Rule 3.170(i), should have been treated as a postconviction relief motion under Rule 3.850 because it satisfied that rule's requirements, including the oath and two-year filing deadline.
A motion to withdraw a plea filed outside the 30-day deadline of Rule 3.170(i) must be treated as a postconviction relief motion under Rule 3.850 if it meets that rule's procedural requirements.
[1] A motion to withdraw a plea that fails to comply with the 30-day filing deadline of Florida Rule of Criminal Procedure 3.170(i) but satisfies the procedural requirements…
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Join FLexlaw to unlock all legal intelligenceFranklin was sentenced on May 23, 2008, and filed a motion to withdraw his plea on October 15, 2009, which was untimely under Rule 3.170(i) but within…
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Michael Shane Franklin appeals the order striking without prejudice his motion to withdraw plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(i). We reverse and remand for further proceedings because Franklin’s motion should have been treated as a motion for postcon-viction relief under Florida Rule of Criminal Procedure 8.850.
Franklin was sentenced on May 23, 2008. He filed the instant motion, styled as a motion to withdraw plea, on October 15, 2009. The motion was untimely under rule 3.170(i), which requires filing within thirty days after sentencing. The court declined to treat the motion as if it had been filed under rule 3.850, finding that it did not contain an oath as required by that rule. However, not only did Franklin’s motion include a proper oath, it was filed within two years after sentencing, as required by rule 3.850, and raised claims that would be appropriate in a rule 3.850 motion. Because Franklin’s motion met the procedural requirements of rule 3.850, the court should have treated it as a motion for postconviction relief. See Houghtaling v. State, 670 So.2d 1019, 1019 (Fla. 2d DCA 1996). Accordingly, we reverse and re-*949mancl for the circuit court to treat Franklin’s motion as if it had been filed under rule 3.850.
Reversed and remanded for further proceedings.
ALTENBERND and KHOUZAM, JJ., Concur.
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Davis v. State, 154 So. 3d 1203 (Fla. 2d DCA 2015)…files a motion to withdraw plea under rule 3.170(i), but the time to file such a motion has passed, the postconviction court should consider it under rule 3.850 so long as it meets the procedural requirements under that rule. See Franklin v. State, 31 So. 3d 948, 948 (Fla. 2d DCA 2010) (citing Houghtaling v. State, 670 So. 2d 1019, 1019 (Fla. 2d DCA 1996)). As in Franklin, Davis’s motion was timely, under oath, and raised claims that would be appropriate in a rule 3.850 motion. Accordingly, we reverse and…
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Starks v. State, 174 So. 3d 1079 (Fla. 5th DCA 2015)…ion to withdraw plea under rule 3.170(0, but the time to file such a motion has passed, the postconviction court should consider it under rule 3.850 so long as it meets the procedural [*1080] requirements under that rule.” (citing Franklin v. State, 31 So. 3d 948, 948 (Fla. 2d DCA 2010))). Often, in this situation, we affirm the trial court’s ruling without prejudice for the appellant to timely file a rule 3.850 motion. See, e.g., Anderson v. State, 116 So. 3d 614 (Fla. 5th DCA 2013). In this case, Appellant…
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Authorities Cited
- Dion Lee Houghtaling v. State, 670 So. 2d 1019 (Fla. 2d DCA 1996)