IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
STATE OF
Appellant,
v. Appeal No. CRC 07-10 APANO
UCN522007AP000010XXXCR
PIERRE TURNER
Appellee.
___________________________/
Opinion filed ________________.
Appeal from an order entered
by the
Acting County Court Judge
Pamela A.M. Campbell
Kristi Aussner, Esquire
Assistant State Attorney
Benjamin G. DeBerg, Esquire
Attorney for appellee
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court granting the defendant’s motion to withdraw his plea. After reviewing the briefs and record, this Court reverses the order.
The defendant pleaded no contest to charges of driving with a suspended license on September 18, 2006. He attempted to withdraw that plea by filing a motion on November 1, 2006, essentially claiming that his plea was the result of ineffective assistance of counsel. A hearing was held on the motion on December 20, 2006, and the hearing resumed on February 7, 2007. At the second phase of the hearing, the defendant was sworn and presented testimony. After the hearing, the trial court granted the defendant’s motion and permitted him to withdraw his plea. The State is appealing that decision.
The State claims that the proper
procedure was not followed. It points out that the defendant’s motion to
withdraw his plea was untimely under Florida Rule of Criminal Procedure
3.170(l) because that rule provides that motions to withdraw pleas must be
filed within thirty days from the date the sentence is rendered, and the
defendant’s motion was filed beyond the thirty-day time limit. Although the
defendant argues that his motion was timely because he only received notice
from the DHSMV in October of 2006 about how the conviction complicated his
driving status, the rule clearly states that the time limit is thirty days from
the date the sentence is rendered. The defendant’s plea was entered on
September 18, 2006 and his sentence rendered that day, but his motion to
withdraw his plea was not filed until November 1, 2006. This was beyond the
thirty-day time limit, and the trial court was without authority to consider
the motion. See Lepper v. State, 826
So.2d 27 (
The State recognizes that filing a motion under Fla. R. Crim. P. 3.170(l) is not the only way in which this defendant can attempt to withdraw his plea. It agrees that the defendant could have attempted to withdraw his plea pursuant to Fla. R. Crim. P. 3.850. The State points out, however, that the defendant’s motion was not filed pursuant to that rule, and the motion met none of the procedural requirements of the rule.
The defendant argues that whatever procedural infirmities were present in his motion to withdraw his plea, they were cured when the defendant was sworn in and presented testimony. This Court, however, agrees with the State’s argument that it was not given an opportunity to prepare for an evidentiary hearing or otherwise properly respond the defendant’s argument. As in Lepper, the trial court should not have treated the motion as one filed under rule 3.850 because it did not meet the requirements of that rule, and the procedure used prejudiced the State because it could not respond in writing to the motion, subpoena witnesses, or otherwise prepare for what turned out to be an evidentiary hearing.
IT IS THEREFORE ORDERED that the
order granting the defendant’s motion to withdraw his plea is reversed without
prejudice to the defendant timely filing a motion for post-conviction relief.
ORDERED at
______________________________
Linda R. Allan
Circuit Court Judge
_______________________________
R. Timothy Peters
Circuit Court Judge
________________________________
John A. Schaefer
Circuit Court Judge
cc: Benjamin G. DeBerg, Esquire
Office of the State Attorney
Honorable Pamela A.M. Campbell