County Criminal Court: CRIMINAL PROCEDURE – Pleas – Defendant failed to allege or preserve any fundamental error. Trial Court properly denied Defendant’s motion to withdraw plea. Judgment affirmed. Mason v. State, No. 02-81APANO (Fla. 6^th Cir. App. Ct. Nov. 13, 2002).

THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

JAMES C. MASON,

Appellant,

v. Appeal No.: CRC01-17378CFANO

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed _______________________

Appeal from Order denying Defendant’s Motion to Withdraw Plea

County Judge Michael R. Andrews

James Mason, pro se

Bernie McCabe, Esq.

State Attorney

ORDER AND OPINION

THIS MATTER is before the Court on the defendant’s appeal from the trial court’s denial of the defendant’s Motion to Withdraw Plea. After reviewing the briefs and record, this Court affirms the trial court’s decision.

On August 2, 2001, the defendant entered a plea of nolo contendere to the offense of Possession of Marijuana and Possession of Paraphernalia. The trial court adjudicated the defendant guilty and placed him on twelve months probation for each offense, the terms of

Mason v. State

CRC 01-17378CFANO, page 2 of 3

probation were concurrent. On September 26, 2001, the defendant filed a Motion to Withdraw Plea. After a hearing on the defendant’s motion, the trial court entered a written order denying the Defendant’s Motion for Reconsideration. The Defendant filed his notice of appeal on October 19, 2001. Appellant’s Initial Brief was filed on April 29, 2002. Counsel for appellant filed an Anders Brief stating counsel could verify no points that could be, in good faith, made for the basis of an appeal. Anders v. California, 386 U.S. 738 (1967). Appellant has not filed a pro se brief.

Florida Rules of Appellate Procedure provide that in order for an appellate court to address the issue of allowing a defendant to withdraw his or her plea, a motion must be filed in the trial court. Fla.R.App.P. 9.140(b)(2)(A)(ii)(c). The motion must state specific facts in order to give the trial court an opportunity to correct any errors, if they were present. Vance v. State, 796 So.2d 1286 (Fla. 5th DCA 2001). Fla.Stat.§924.051(3) provides that “an appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved, or if not preserved, would constitute fundamental error. To be “preserved” a legal argument or objection must have been raised before and ruled on by the trial court. Harrell v. State, 2002 FLW D2225 (Fla. 1^st DCA September 27, 2002).

In the case at bar, appellant has not alleged any of the grounds in Fla.R.App.Pro. 9.140(b)(2)(ii), nor has appellant alleged any specific facts in his Motion to Withdraw Plea. At best, the pleading contains conclusory statements. Appellant has failed to allege or preserve any prejudicial error. A thorough review of the file finds that no fundamental error occurred at either the plea colloquy or at sentencing. The judgment and sentence imposes a probationary sentence, which does not exceed the maximum sentence for a first-degree misdemeanor. Accordingly, the trial court did not err in denying the Motion to Withdraw Plea. It is therefore,

ORDERED AND ADJUDGED that appellate counsel is permitted to withdraw as counsel for the defendant. It is further,

Mason v. State

CRC 01-17378CFANO, page 3 of 3

ORDERED AND ADJUDGED that the trial court’s denial of the Defendant’s Motion is affirmed.

DONE AND ORDERED in chamber, Clearwater, Pinellas County, Florida this _____ day of November, 2002.

_______________________________

NANCY MOATE LEY

Circuit Judge

Primary Appellate Judge

_______________________________

W. Douglas Baird

Circuit Judge

_______________________________

TIMOTHY R. PETERS

Circuit Judge

Copies furnished to:

James Mason

10957 70th Ave. North

Seminole, Fl 33772-6305

Charles Lykes, Esq

501 South Fort Harrison Avenue, Suite 101

Clearwater, FL 33756

Bernie McCabe, Esq.

State Attorney