Faller v. State

District Court of Appeal of Florida

Faller v. State

1 So. 3d 1291, 2009 Fla. App. LEXIS 1805, 2009 WL 530582

CourtDistrict Court of Appeal of Florida

DecidedMarch 4, 2009

DocketNo. 2D08-1164

StatusPublished

This text of 1 So. 3d 1291 (Faller v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Faller v. State, 1 So. 3d 1291, 2009 Fla. App. LEXIS 1805, 2009 WL 530582 (Fla. Ct. App. 2009).

Pincite

Opinion

CASANUEVA, Judge.

Douglas H. Faller challenges the summary dismissal of his pro se motion to withdraw his no contest plea to nineteen third-degree felony counts. The trial court dismissed the motion on the ground that it was untimely filed. The State concedes that the trial court erred in dismissing the motion in Mr. Faller’s circumstances because his motion was timely filed.

Mr. Faller was incarcerated at the time he “filed” his motion by placing it into the hands of prison officials. Florida Rule of Criminal Procedure 3.170(0 allows a convicted defendant thirty days after rendition of sentence to file a motion to withdraw a plea. The certificate of service on Mr. Faller’s motion shows that it was “served,” i.e., given to prison officials, on the twenty-ninth day after his sentencing, a Friday. It was date-stamped by a prison official and postmarked on the thirty-second day, a Monday. According to Florida Rule of Appellate Procedure 9.420(a)(2), this is deemed a timely filing.¹

Because the motion should have been considered timely filed, we reverse the dis[1292]*1292missal and remand for further proceedings. Despite this reversal, we caution Mr. Faller, who is proceeding'pro se, that should he succeed in withdrawing his plea to a sentence of eight years, four months, he faces the possibility of a much longer sentence should the State prevail at trial.

Order of dismissal reversed and the cause remanded for the trial court to consider Mr. Faller’s motion to withdraw plea.

WHATLEY and LaROSE, JJ., Concur.

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CASANUEVA, Judge.

Douglas H. Faller challenges the summary dismissal of his pro se motion to withdraw his no contest plea to nineteen third-degree felony counts. The trial court dismissed the motion on the ground that it was untimely filed. The State concedes that the trial court erred in dismissing the motion in Mr. Faller’s circumstances because his motion was timely filed.

Mr. Faller was incarcerated at the time he “filed” his motion by placing it into the hands of prison officials. Florida Rule of Criminal Procedure 3.170(0 allows a convicted defendant thirty days after rendition of sentence to file a motion to withdraw a plea. The certificate of service on Mr. Faller’s motion shows that it was “served,” i.e., given to prison officials, on the twenty-ninth day after his sentencing, a Friday. It was date-stamped by a prison official and postmarked on the thirty-second day, a Monday. According to Florida Rule of Appellate Procedure 9.420(a)(2), this is deemed a timely filing.¹

Because the motion should have been considered timely filed, we reverse the dis[1292]*1292missal and remand for further proceedings. Despite this reversal, we caution Mr. Faller, who is proceeding'pro se, that should he succeed in withdrawing his plea to a sentence of eight years, four months, he faces the possibility of a much longer sentence should the State prevail at trial.

Order of dismissal reversed and the cause remanded for the trial court to consider Mr. Faller’s motion to withdraw plea.

WHATLEY and LaROSE, JJ., Concur.

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Bluebook (online)

1 So. 3d 1291, 2009 Fla. App. LEXIS 1805, 2009 WL 530582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faller-v-state-fladistctapp-2009.