STEPHEN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Smith appeals the trial court's dismissal of his motions to withdraw his guilty plea after sentencing. The appellate court affirmed the dismissal of the first motion due to lack of jurisdiction during the pendency of a direct appeal, but reversed and remanded the denial of the second motion because it was untimely filed, exceeding the 30-day jurisdictional deadline.
The trial court lacked jurisdiction over the first motion to withdraw plea because it was filed during the pendency of a direct appeal. The trial court also lacked jurisdiction over the second motion because it was untimely filed outside the 30-day jurisdictional deadline under Florida Rule of Criminal Procedure 3.170(Z).
[1] A trial court lacks jurisdiction to entertain a motion to withdraw a plea filed during the pendency of a direct appeal.
[2] A motion to withdraw a plea filed more than thirty days after sentencing is untimely and the trial court lacks jurisdiction to rule on it.
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Join FLexlaw to unlock all legal intelligence“once a notice of appeal is filed, the trial court does not have jurisdiction to decide a subsequently filed motion to withdraw plea”
Establishes that the trial court lacked jurisdiction over the first motion to withdraw plea filed after notice of appeal
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Join FLexlaw to unlock all legal intelligenceSmith was sentenced on February 6, 2012. He filed a notice of appeal on February 7, 2012, which was acknowledged by the appellate court on February 20…
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Stephen Smith appeals the trial court’s March 20, 2012 order dismissing his motion to withdraw plea after sentencing and the April 11, 2012 order denying his second motion to withdraw plea after sentencing.1 He argues the trial court erred when it summarily denied his motions without affording him a hearing. We find no error in the dismissal of Smith’s first motion to withdraw plea, filed on March 3, 2012, because the trial court lacked jurisdiction to entertain the motion during the pendency of his direct appeal.2 See Kearse v. State, 858 So.2d 1247, 1248 (Fla. 5th DCA 2003) (once a notice of appeal is filed, the trial court does not have jurisdiction to decide a subsequently filed motion to withdraw plea). Because Smith’s second motion to withdraw plea, filed on March 29, 2012, was untimely, we find the trial court did not have jurisdiction to rule on the motion.3 See Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001) (holding the thirty day time limit under 3.170(Z) is jurisdictional). Accordingly, we reverse the April 11, 2012 order denying Smith’s second motion to withdraw plea after sentencing, and remand with directions to vacate the order and dismiss it as untimely, without prejudice to any right he may have to seek postconviction relief through a timely rule 3.850 motion. Id. (“Failure to file a motion to withdraw the plea within 30 days waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.”).
AFFIRMED in part, REVERSED in part, and REMANDED WITH DIRECTIONS.
LAWSON, JACOBUS and BERGER, JJ., concur.
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Jackson v. State, 190 So. 3d 98 (Fla. 4th DCA 2015)…er denying appellant's motion to withdraw plea because it was entered after the notice of appeal was filed, at which point the trial court lacked jurisdiction to proceed. Also, no notice of appeal places that order before this court. Smith v. State, 113 So. 3d 110, 111 (Fla. 5th DCA 2013).…
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Flores v. State, 211 So. 3d 68 (Fla. 4th DCA 2017)…er v. State, 203 So. 3d 192, 192 (Fla. 4th DCA 2016) (citing Copeland v. State, 867 So. 2d 643, 643 (Fla. 4th DCA 2004)); see also McCray v. State, 840 So. 2d 274, 275 (Fla. 4th DCA 2003). Sister courts have held the same. See, e.g., Smith v. State, 113 So. 3d 110, 111 (Fla. 5th DCA 2013); Wilson v. State, 814 So. 2d 1203, 1204 (Fla. 2d DCA 2002). We would consider Appellant’s arguments on the merits with respect to the conviction, judgment, and sentence (the issues raised by his September 9 notice of appeal…
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Lund v. Project Warm, 177 So. 3d 283 (Fla. 5th DCA 2015)…ely only if it is “filed with the court at least 10 days before the expiration of the court-ordered treatment period.” We have previously held that similarly expressed time limitations for permissive motions are mandatory. See, e.g., Smith v. State, 113 So. 3d 110, 111 (Fla. 5th DCA 2013). Because the petition for renewal of the involuntary treatment order was untimely filed, we grant the petition, quash the lower court’s order of continued commitment, and order the Petitioner to be immediately released by P…
Authorities Cited
- Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001)
- Kearse v. State, 858 So. 2d 1247 (Fla. 5th DCA 2003)