Bullock v. State

879 So. 2d 645, 2004 Fla. App. LEXIS 8878, 2004 WL 1401388

Opinion

PER CURIAM.

Appellant seeks review of an order of the trial court striking his motion to withdraw plea filed pursuant to Rule 3.170(1), Florida Rules of Criminal Procedure. The State acknowledges that the trial court erred by striking appellant’s motion. On the procedural facts of the present case, the notice of appeal filed by appellant, some five days after the timely motion to withdraw a plea, did not automatically divest the trial court of jurisdiction to consider the motion to withdraw. “[A] pending motion to correct a sentence or order of probation or a motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abey-anee until the filing of a signed, written order disposing of such motion.” Fla. R.App. P. 9.020(h)(3).

The order striking appellant’s motion is VACATED, and the case is REMANDED for further proceedings on appellant’s motion.

KAHN, DAVIS and PADOVANO, JJ., concur.