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

• Court: District Court of Appeal of Florida
• Decided: August 4, 2021
• Docket: 21-0599
• Status: Published

Opinion

Third District Court of Appeal State of Florida

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

________________

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

2 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.