THOMAS DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a belated motion to withdraw a plea should be considered on its merits as a motion for postconviction relief if it meets the procedural requirements for such a motion.
The defendant filed a motion to withdraw his plea after the time limit for such a motion had passed. The postconviction court denied the motion as unt…
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Thomas Davis appeals the order denying his belated motion to withdraw plea, which the postconviction court denied as untimely without prejudice to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because the circuit court erred in not resolving the belated motion on the merits as if filed under rule 3.850, we reverse.
Davis’s motion was styled as a motion to withdraw plea under rule 3.170(Z), and while the postconviction court correctly determined that the motion was untimely under that rule because it was not filed within thirty days of the rendition of the sentence, the analysis should not have ended there. When a defendant 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 remand for the postconviction court to consider the motion under that rule.
Reversed and remanded.
VILLANTI, WALLACE, and CRENSHAW, JJ., Concur.
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Citator
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Starks v. State, 174 So. 3d 1079 (Fla. 5th DCA 2015)…n to withdraw plea as untimely and argues that the trial court should have treated the motion as a petition for ineffective assistance of counsel based on defense counsel’s misadvice before Appellant entered his plea. We agree.1 See Davis v. State, 154 So. 3d 1203, 1203 (Fla. 2d DCA 2015) (“When a defendant files a motion 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] re…
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Derrick v. Hoskin (Fla. 3d DCA 2022)
Authorities Cited
- Dion Lee Houghtaling v. State, 670 So. 2d 1019 (Fla. 2d DCA 1996)
- Franklin v. State, 31 So. 3d 948 (Fla. 2d DCA 2010)