County Criminal Court: CRIMINAL PROCEDURE Ė Pleas ĖDefendantís attempt to withdraw his plea was untimely under Florida Rule of Criminal Procedure 3.170(l), and failed to comply with the procedural requirements of 3.850. Order granting motion to withdraw plea is reversed without prejudice to filing a proper 3.850 motion. State v. Turner, No. CRC 07-10 APANO (Fla. 6th Cir. App. Ct. October 30, 2007).








††††††††††† Appellant,††††††††††††††††††††††††††††††††††††††††††††

v.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 07-10 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522007AP000010XXXCR




††††††††††† Appellee.



Opinion filed ________________.


Appeal from an order entered

by the Pinellas County Court

Acting County Court Judge

Pamela A.M. Campbell


Kristi Aussner, Esquire

Assistant State Attorney


Benjamin G. DeBerg, Esquire

Attorney for appellee




††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order entered by the Pinellas County Court granting the defendantís 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 defendantís 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 defendantís 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 defendantís 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 defendantís 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 (Fla. 2d DCA 2002).

††††††††††† 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 defendantís 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 Stateís argument that it was not given an opportunity to prepare for an evidentiary hearing or otherwise properly respond the defendantís 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 defendantís motion to withdraw his plea is reversed without prejudice to the defendant timely filing a motion for post-conviction relief.

††††††††††† ORDERED at Clearwater, Florida this _____ day of October, 2007.



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† 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