FERNANDO LAGUNAS
v.
STATE OF FLORIDA
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A criminal appellant filed a pro se motion to withdraw his guilty plea within the statutory 30-day period, but the trial court dismissed it as untimely. The appellate court reversed, finding that the trial court miscalculated the filing deadline by failing to exclude legal holidays from the computation period, and remanded for consideration of the motion on its merits.
The court reversed the trial court's dismissal order, holding that the appellant's motion to withdraw plea was timely filed. The court found that the 30-day period to file began on Monday, July 8, 2024, excluding the legal holidays of July 4 and July 5, making the August 6 filing date within the deadline.
[1] When calculating the thirty-day period for filing a motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(l), legal holidays and court holidays must be e…
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Join FLexlaw to unlock all legal intelligenceThe appellant received a written judgment and sentence on July 4, 2024, a legal holiday. July 5, 2024, was also designated as an official court holida…
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March 21, 2025 PER CURIAM.
Based on the State’s concession of error, we reverse the trial court’s order dismissing Appellant’s pro se motion to withdraw plea and remand to address the motion on the merits.
A motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(l) must be filed within 30 days after the rendition of a sentence. Here, however, Appellant’s written judgment and sentence were rendered on a legal holiday: Independence Day, July 4, 2024. See Fla. R. Gen. Prac. & Jud. Admin. 2.514(a)(6)(A). The following day, Friday, July 5, 2024, was also designated an official court holiday by the chief judge of the Seventh Judicial Circuit and the Volusia County Clerk of Circuit Court. See Fla. R. Gen. Prac. & Jud. Admin. 2.514(a)(6)(B). Therefore, Appellant’s 30 days to file a motion to withdraw plea began on Monday, July 8, 2024. See Fla. R. Gen Prac. & Jud. Admin. 2.514(a)(1)(A) (“When the period is stated in days . . . begin counting from the next day that is not a Saturday, Sunday, or legal holiday[.]”). Thus, as the State concedes, Appellant timely filed his pro se motion on August 6, 2024.1 The State also concedes Appellant’s motion raises allegations of misadvice of counsel and therefore should not be stricken as a nullity. See Sheppard v. State, 17 So. 3d 275, 286–87 (Fla. 2004).
Accordingly, we reverse the trial court’s order dismissing Appellant’s motion to withdraw plea, and remand to the trial court to address Appellant’s motion on the merits.
REVERSED and REMANDED with instructions. EDWARDS, C.J., and LAMBERT and KILBANE, JJ., concur. 1 Later that same day, Appellant filed a document that was properly treated as a Notice of Appeal. This filing did not divest the trial court of jurisdiction to rule on the pending motion to withdraw plea nor is it a nullity. See Fla. R. App. P. 9.020(h)(2)(C); Carroll v. State, 157 So. 3d 385, 386 (Fla. 2d DCA 2015); Chipman v. State, 285 So. 3d 1005, 1006 (Fla. 2d DCA 2019).
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
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- Sheppard v. State, 17 So. 3d 275 (Fla. 2009)
- Connell L. Carroll v. State, 157 So. 3d 385 (Fla. 2d DCA 2015)