TAZARIOUS VONELLIS HAWTHORNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tazarious Hawthorne appeals his convictions for trafficking in hydrocodone and carrying a concealed firearm. The court affirms the convictions and sentences but remands for the trial court to dismiss rather than deny his motion to withdraw plea, as the trial court lost jurisdiction when Hawthorne filed his notice of appeal.
The convictions and sentences are affirmed. The court remands with instructions for the trial court to dismiss the motion to withdraw plea for lack of jurisdiction rather than denying it on the merits, and if Hawthorne was represented by counsel at the time, to strike the pro se motion as unauthorized.
[1] A trial court lacks jurisdiction to consider a motion filed by a defendant after the filing of a notice of appeal.
[2] A motion filed by a defendant after a notice of appeal has been filed should be dismissed for lack of jurisdiction, rather than denied on its merits.
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Join FLexlaw to unlock all legal intelligence“Because the filing of a notice of appeal divests the trial court of jurisdiction, the trial court should have dismissed the motion on that basis instead of denying it.”
Establishes the core holding that the trial court lost jurisdiction upon Hawthorne's filing of the appeal notice and should have dismissed rather than denied the motion.
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Join FLexlaw to unlock all legal intelligenceHawthorne was convicted of trafficking in hydrocodone (twenty-eight grams or more) and carrying a concealed firearm. After being sentenced and filing …
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Tazarious Hawthorne challenges ,his convictions and sentences for trafficking in hydrocodone (twenty-eight grams or more) and carrying a concealed firearm in this appeal that is proceeding pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the convictions and sentences without comment. We remand for the purpose of having the trial court enter an order that dismisses, rather than denies, a motion to withdraw plea Mr. Hawthorne filed after being sentenced.
The motion to withdraw was filed by Mr. Hawthorne pro se and alleged that his plea was involuntary because the trial court failed to determine whether he understood *293the terms of the plea agreement, whether he understood the constitutional rights he was waiving, and whether a factual basis for the plea existed. The trial court denied the motion, finding that it was both facially insufficient and meritless,
Mr. Hawthorne'filed the motion to withdraw plea after he filed a notice of appeal of his judgment and sentences. Because the filing of a notice of appeal divests the trial court of jurisdiction, the trial court should have dismissed the motion on that basis instead of denying it. See Mingo v. State, 914 So.2d 1070, 1070 (Fla. 2d DCA 2005); Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002). Inasmuch as the trial court was without jurisdiction to reach the merits of Mr. Hawthorne’s pro se motion, we must remand with instructions for the trial court to vacate its order denying that motion and to enter an order dismissing it for lack of jurisdiction. See id. In that connection, it is not clear from our record whether Mr. Hawthorne, was also represented by counsel at the time he filed his pro se motion to. withdraw plea. If, on remand, the trial court finds that Mr. Hawthorne was represented and did not move to, discharge counsel, it should instead, after vacating the denial order, strike Mr. Hawthorne’s motion as an unauthorized pro se pleading. See Mingo, 914 So.2d at 1070; Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004). Neither disposition reaches the merits of Mr. Hawthorne’s claim that his plea was involuntary.
Affirmed; remanded with instructions.
BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.
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Citator
Cited By
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Indasia Underwood v. State, 272 So. 3d 858 (Fla. 2d DCA 2019)…t was without jurisdiction to consider the motion after the notice of appeal was filed. See Othouse v. State, 912 So. 2d 682, 682 (Fla. 2d DCA 2005). The trial court should have dismissed the motion rather than deny it. See Hawthorne v. State, 226 So. 3d 292, 293 (Fla. 2d DCA 2017) ("Because the filing of a notice of appeal divests the trial court of jurisdiction, the trial court should have dismissed the motion on that basis instead of denying it."). Accordingly, we remand for the trial court to va…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Sharp v. State, 884 So. 2d 510 (Fla. 2d DCA 2004)
- Wilson v. State, 814 So. 2d 1203 (Fla. 2d DCA 2002)
- Mingo v. State, 914 So. 2d 1070 (Fla. 2d DCA 2005)