CHANDLER CAMPBELL

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CHANDLER CAMPBELL,

Appellant,

v. Case No. 5D19-2054

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed March 13, 2020

Appeal from the Circuit Court for Seminole County, Melissa Souto, Judge.

James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Chandler Campbell appeals his judgment and sentences imposed following his open, nolo contendere plea to fifteen felony charges. Campbell’s sole argument on appeal is that the trial court abused its discretion when, after receiving certain responses from Campbell during the change of plea colloquy, it did not sua sponte schedule a

2 hearing pursuant to Florida Rules of Criminal Procedure 3.210–.212 to determine his competency to tender a plea.¹

While “[a] defendant’s competency at the time he enters a guilty or no contest plea is an issue bearing upon the voluntary and intelligent character of the defendant’s plea,” Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005) (citing Trawick v. State, 473 So. 2d 1235, 1238 (Fla. 1985)), before raising such an issue on appeal, the defendant must first file a motion to withdraw the plea with the trial court. Id.; see also Fla. R. App. P. 9.140(b)(2)(A)(ii)c. (providing that a defendant who pleads guilty or nolo contendere may directly appeal an involuntary plea only if preserved by a motion to withdraw plea); Leonard v. State, 760 So. 2d 114, 119 n.13 (Fla. 2000) (noting that for a direct appeal raising the voluntary and intelligent character of the plea, this issue must be preserved for appeal by first filing a motion to withdraw the plea in the trial court). Here, Campbell failed to file a motion to withdraw his plea. As such, we lack jurisdiction to consider his claim.² See Hicks, 915 So. 2d at 741; accord Ovenshire v. State, 278 So. 3d 103 (Fla. 5th DCA 2019); Hammonds v. State, 275 So. 3d 797 (Fla. 5th DCA 2019); Murphy v. State, 181 So. 3d 574 (Fla. 5th DCA 2015); Garcia-Manriquez v. State, 146 So. 3d 134 (Fla. 3d DCA 2014); but see Dortch v. State, 242 So. 3d 431, 433

Consequently, we dismiss the appeal, but we do so without prejudice to Campbell’s right to seek appropriate and timely postconviction relief below.

DISMISSED.

LAMBERT and EISNAUGLE, JJ., concur. COHEN, J., concurs specially, with opinion.

CASE NO. 5D19-2054

COHEN, J., concurring specially.

I agree with denying Campbell’s request for relief because he never moved to withdraw his plea. However, I believe this case should be affirmed rather than dismissed. As pointed out in Dortch v. State, 242 So. 3d 431, 435–37 (Fla. 4th DCA 2018) (Forst, J., concurring), there has been inconsistency (including by the undersigned) in the manner of disposition of cases presenting this issue. I am of the view that we are bound by Leonard v. State, 760 So. 2d 114, 119 (Fla. 2000), which held that when a defendant enters a nolo contendere plea but fails to move to withdraw his plea prior to appealing, this Court has subject matter jurisdiction to hear the appeal and thus, should affirm rather than dismiss.