Cunningham v. State

838 So. 2d 1209, 2003 WL 728384

Opinion

838 So.2d 1209 (2003)

William A. CUNNINGHAM, Appellant,
v.
STATE of Florida, Appellee.

No. 2D01-5710.

District Court of Appeal of Florida, Second District.

March 5, 2003.

James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.

William A. Cunningham, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo-Cruz Carino, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

We affirm Cunningham's convictions and sentences for attempted capital sexual battery and lewd and lascivious assault. We note, however, that Cunningham filed a pro se motion to withdraw his plea in the trial court during the thirty-day period allowed by Florida Rule of Criminal Procedure 3.170(l) but after he had filed his notice of appeal.^[1] Because the notice of appeal had been filed, the trial court was without jurisdiction to consider Cunningham's motion at that point. While we express no opinion on the merits of Cunningham's motion, on remand, the trial court must consider and rule on it.

Affirmed, but remanded for further proceedings.

CASANUEVA and STRINGER, JJ., Concur.

NOTES

[1] Cunningham was no longer represented by counsel when he filed his pro se motion to withdraw his plea.