BRIAN WILLIAM ADKINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Adkinson appealed his conviction based on a nolo contendere plea and sought to withdraw that plea. The appellate court affirmed the judgment and sentence but reversed the trial court's denial of the motion to withdraw the plea, holding that the trial court lacked jurisdiction to consider a motion to withdraw filed after notice of appeal.
The trial court lacked jurisdiction to consider the motion to withdraw the plea because it was filed after the notice of appeal, which divested the trial court of that jurisdiction. The trial court should have dismissed the motion for lack of jurisdiction rather than denying it on the merits.
[1] A trial court loses jurisdiction to consider a motion to withdraw a plea when a notice of appeal is filed before the motion.
[2] A premature notice of appeal is effective to vest jurisdiction in the appellate court upon rendition of the judgment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“By contrast, in this case, the motion to withdraw the plea was filed after the notice of appeal, which divested the trial court of jurisdiction to consider the motion.”
Establishes the core holding that filing a motion to withdraw plea after notice of appeal divests the trial court of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a notice of appeal on August 17, 2009. Eight days later, on August 25, 2009, Appellant filed a pro se motion to withdraw his nolo cont…
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Appellant seeks review of the judgment and sentence entered based upon his nolo contendré plea. We affirm the judgment and sentence without comment. However, for the reasons that follow, we reverse the order denying Appellant’s motion to withdraw his plea and remand for the trial court to enter an order dismissing the motion for lack of jurisdiction.
Appellant filed his notice of appeal in this case on August 17, 2009.* Eight days later, on August 25, 2009, Appellant filed a pro se motion to withdraw his plea. On September 25, 2009, the trial court entered an order summarily denying the motion on the merits.
In its denial, the trial court cited Adams v. State, 942 So.2d 1024 (Fla. 4th DCA 2006), for the proposition that it had jurisdiction to consider the motion notwithstanding the previously-filed notice of appeal. Adams is distinguishable because in that case the motion to withdraw the plea was filed before the notice of appeal was filed, and pursuant to Florida Rule of Appellate Procedure 9.020(h)(3), the notice of appeal did not affect the trial court’s ability to rule on the motion. Id. By contrast, in this case, the motion to withdraw the plea was filed after the notice of appeal, which divested the trial court of jurisdiction to consider the motion. See Hines v. State, 32 So.3d 678 (Fla. 1st DCA 2010); Mingo v. State, 914 So.2d 1070 (Fla. 2d DCA 2005); McCray v. State, 840 So.2d 274 (Fla. 4th DCA 2003).
Because the trial court was without jurisdiction to consider Appellant’s motion to withdraw plea, the trial court should have *837dismissed the motion rather than denying it on the merits. Accordingly, we reverse that order and remand with directions for the trial court to dismiss the motion for lack of jurisdiction.
Judgment and sentence AFFIRMED; order denying motion to withdraw plea REVERSED and REMANDED with directions.
WEBSTER and MARSTILLER, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ives Renna v. State, 96 So. 3d 1039 (Fla. 4th DCA 2012)…of the order denying his motion to dismiss before filing his motion to withdraw plea. Thus, his motion to withdraw plea, and the circuit court’s order denying that motion, are nullities which we may not review in this appeal. See Adkinson v. State, 36 So. 3d 836, 836-37 (Fla. 1st DCA 2010) (“[T]he motion to withdraw the plea was filed after the notice of appeal, which divested the trial court of jurisdiction to consider the motion.... Because the trial court was without jurisdiction to consider Appellant’s…
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Bowen v. State, 151 So. 3d 548 (Fla. 1st DCA 2014)…e the appellant filed a pro se notice of appeal prior to filing his motions to withdraw plea, we remand with directions to the trial court to enter an order dismissing, not denying, appellant’s pro se motions to withdraw plea. See Adkinson v. State, 36 So. 3d 836 (Fla. 1st DCA 2010). Judgment and sentence AFFIRMED; order denying motion to withdraw plea REVERSED with directions. BENTON, CLARK, and ROWE, JJ., concur.…
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Jones v. State, 175 So. 3d 933 (Fla. 1st DCA 2015)…trial court was without jurisdiction to consider or rule upon Appellant’s motion to withdraw plea filed after the notice of appeal, we reverse the order denying the motion and remand for the trial court to dismiss the motion. See Adkinson v. State, 36 So. 3d 836 (Fla. 1st DCA 2010); Hines v. State, 32 So. 3d 678 (Fla. 1st DCA 2010). [*934] AFFIRMED in part; REVERSED in part and REMANDED with instructions. LEWIS, WETHERELL, and MAKAR, JJ., concur.…
Authorities Cited
- Moore v. State, 840 So. 2d 274 (Fla. 3d DCA 2003)
- Mingo v. State, 914 So. 2d 1070 (Fla. 2d DCA 2005)
- Adams v. State, 942 So. 2d 1024 (Fla. 4th DCA 2006)
- Ross v. State, 942 So. 2d 1024 (Fla. 4th DCA 2006)
- Freddrick D. Hines v. State, 32 So. 3d 678 (Fla. 1st DCA 2010)