County Criminal Court: CRIMINAL PROCEDURE – Post –conviction Relief – Defendant’s motion to withdraw his plea was untimely when he entered his plea in 2002, but did not bring his motion for post-conviction relief until 2006. Moreover, the use of uncounseled pleas to declare defendants habitual traffic offenders is permitted. State v. King, No. CRC 07-15 APANO (Fla. 6th Cir. App. Ct. Feb. 11, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 07-15 APANO

                                                                               UCN522007AP00015XXXXCR

AKEYAO KING

 

            Appellee.

______________________________/

 

Opinion filed ____________________.

 

Appeal from an order entered by

the Pinellas County Court

County Judge William H. Overton

 

C. Marie King, Esquire

Assistant State Attorney

 

Benjamin DeBerg, Esquire

Attorney for appellee

ORDER AND OPINION

            (J. Morris)

 

            THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court vacating the plea, judgment and sentence. After reviewing the briefs and record, this Court reverses the order.

            The defendant was found guilty of a third Driving While License Suspended or Revoked (“DWLSR”), qualifying him as a habitual traffic offender. As a habitual traffic offender, the defendant was notified that his driver’s license was suspended for five years. Shortly after receiving the notice, he sought to collaterally attack one of the prior DWLSR convictions by seeking to withdraw his plea, claiming it was invalid because it was uncounseled.

            The defendant’s action to withdraw his plea was untimely. The plea was entered April 9, 2002 and the defendant sought to withdraw his plea on December 4, 2006. This is well beyond the two-year time limit imposed by Fla. R. Crim. P. 3.850, and the defendant did not demonstrate any recognized exception to this time limit. The trial court should have dismissed the motion.

            Moreover, using uncounseled pleas to declare defendants habitual traffic offenders is permitted. See Patterson v. State, 938 So.2d 625 (Fla. 2d DCA 2006). Therefore, the substantive grounds for the motion to withdraw the plea were not valid.         

            IT IS THEREFORE ORDERED that the order vacating the plea, judgment and sentence is reversed, and this case is remanded to the County Court for action consistent with this Order and Opinion.

            DONE AND ORDERED in Clearwater, Pinellas County, this _____ day of February, 2008.

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Court Judge

 

 

                                                                        ____________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

 

 

                                                                        _____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

            Honorable William H. Overton

                        Benjamin DeBerg, Esq.