Summary
holding that failure to file a motion to withdraw the plea within 30 days of sentencing waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850
Summary of this case from Sundwall v. StateOpinion
No. 3D07-938.
September 19, 2007.
Appeal from the Circuit Court, Miami-Dade County, Dava J. Tunis, J.
Elliot Courtney McKnight, in proper person.
Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
Before COPE, ROTHENBERG and SALTER, JJ.
This is an appeal from a trial court order denying the appellant's pro se post-sentencing motion to withdraw his plea. The motion was initially, and erroneously, filed with this Court on January 4, 2007. The motion was then transferred to the circuit court for consideration and disposition. See Fla.R.App.P. 9.040(b)(1).
The circuit court denied the motion for lack of jurisdiction and lack of the sentencing transcript, apparently believing that the erroneous filing with this Court had deprived the circuit court of jurisdiction. The appellant then filed a pro se notice of appeal from that order.
The record affirmatively shows that the appellant's motion was untimely. Fla.R.Crim.P. 3.170( l). Rendition of sentence occurred on November 21, 2006, and the motion to withdraw plea was not provided to the South Florida Reception Center for mailing until December 29, 2006.
We therefore affirm the order below as the motion was untimely. "Failure to file a motion to withdraw the plea within 30 days waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850." Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001).
Affirmed.