FREDERICK L. COLE, III v. THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed August 4, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-599 Lower Tribunal No. F18-17745 ________________

Frederick L. Cole, III, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.

Frederick L. Cole, III, in proper person.

Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

Before EMAS, HENDON and MILLER, JJ.

EMAS, J.

Frederick L. Cole, III appeals from an order denying, as untimely, his motions to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(l). Cole alleged in his motions that he entered a plea of guilty pursuant to negotiations and that, as a result of the negotiated plea, he was sentenced on November 6, 2019, to eight years in prison followed by two years’ probation.

Thereafter, Cole filed two separate motions to withdraw his plea. The first motion to withdraw was handwritten, and alleges it was placed in the hands of corrections officials on November 18, 2020, more than a year after the sentence was rendered. The second motion was typewritten, and alleges it was placed in the hands of corrections officials on January 6, 2021, fourteen months after the sentence was rendered. Both motions allege the identical basis for seeking to withdraw the November 6, 2019, plea and sentence.

The trial court properly denied these motions as untimely. A motion to withdraw plea pursuant to rule 3.170(l) is narrowly limited in both time and scope:

Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of

Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

Cole’s failure to file his motion to withdraw plea within thirty days of rendition of his sentence “waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.” McKnight v. State, 964 So. 2d 803, 804 (Fla. 3d DCA 2007) (quoting Gafford v. State, 783 So. 2d 1191, 1192 (Fla. 1st DCA 2001)); Sundwall v. State, 306 So. 3d 1061 (Fla. 3d DCA 2020); Daniels v. State, 974 So. 2d 1131 (Fla. 3d DCA 2008).

Affirmed without prejudice to the filing of a timely and legally sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850.