DERRICK V. HOSKIN,

v.

THE STATE OF FLORIDA,

Third District Court of Appeal State of Florida

Opinion filed June 15, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2300 Lower Tribunal Nos. F16-6834B, F11-19406 ________________

Derrick V. Hoskin, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.

Derrick V. Hoskin, in proper person.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before EMAS, MILLER and BOKOR, JJ.

EMAS, J.

The relevant facts are straightforward and are not in dispute: On January 20, 2017, Hoskin entered a negotiated plea to three separate cases—a 2010 probation case, a 2011 probation case, and a 2016 case (the latter serving as a basis for a violation of Hoskin’s probation in the 2010 and 2011 cases).¹

The trial court treated the motion as one seeking to withdraw the plea pursuant to rule 3.170(l), which provides: A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

(Emphasis added).

In turn, rule 9.140(b)(2)(A)(ii)(a)-(e) provides the following:

A defendant who pleads guilty or nolo contendere may otherwise directly appeal only:

a. the lower tribunal's lack of subject matter jurisdiction; b. a violation of the plea agreement, if preserved by a motion to withdraw plea; c. an involuntary plea, if preserved by a motion to withdraw plea; d. a sentencing error, if preserved; or e. as otherwise provided by law.

(Emphasis added.) The trial court denied Hoskin’s motion as untimely because it was not filed within thirty days of sentence rendition as required by rule 3.170(l). And

(Emphasis added.) Generally, a motion seeking relief under 3.850(a) is considered timely if filed within two years after the judgment and sentence become final. See Fla. R. Crim. P. 3.850(b). Hoskin’s motion was timely under rule 3.850, and

2 Rule 3.850 provides a procedural vehicle to challenge the voluntariness of a plea after the judgment and sentence have become final on direct appeal. By contrast, rule 3.170(l) (as limited by rule 9.140(b)(2)(A)(ii)) provides a vehicle to challenge the voluntariness of a plea during the direct appeal process. See Mourra v. State, 884 So. 2d 316, 319 (Fla. 2d DCA 2004), abrogated on other grounds by Sheppard v. State, 17 So. 3d 275 (Fla. 2009) (observing that the Florida Supreme Court adopted rule 3.170(l) in an effort to implement the Florida Legislature’s Criminal Appeal Reform Act of 1996, and noting that a rule 3.170(l) motion was intended to occur as a part of the initial criminal proceedings and direct appeal, when a defendant still has a right to counsel).

3 We express no opinion whether Hoskin can state a facially sufficient claim and, if so, whether any such claim has merit.