Khalil Flozel Taylor v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-1768 _____________________________

KHALIL FLOZEL TAYLOR,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge.

January 7, 2019

PER CURIAM.

Appellant simultaneously filed both a timely motion to withdraw plea, and a notice of appeal. The trial judge dismissed the motion, reasoning that the filing of the notice of appeal divested him of jurisdiction over the motion. The State concedes error. We agree with the State’s analysis, and reverse and remand for the trial judge to rule on Appellant’s motion to withdraw plea, during which time this appeal will be held in abeyance. See Fla. R. App. P. 9.020(i)(3) (if a timely-filed motion to withdraw plea under rule 3.170(l) is pending and a notice of appeal is filed before the filing of a signed, written order disposing of the motion to withdraw plea, the appeal shall be held in abeyance until the filing of an order disposing of the motion); Davis v. State, 763 So. 2d 519 (Fla. 5th DCA 2000) (finding trial

court retains jurisdiction to consider a motion to withdraw plea, filed simultaneously with notice of appeal); see also Adams v. State, 942 So. 2d 1024 (Fla. 4th DCA 2006) (finding trial court retains jurisdiction to decide timely motion to withdraw plea that is pending when notice of appeal is filed).

REVERSED and REMANDED. LEWIS, KELSEY, and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Frank Xavier Moehrle, Jr., Assistant Attorney General, Tallahassee, for Appellee.