Gipson v. State

209 So. 3d 653, 2017 WL 456668, 2017 Fla. App. LEXIS 1286

• Court: District Court of Appeal of Florida
• Decided: February 3, 2017
• Docket: Case 2D15-4671
• Status: Published

Opinion

PER CURIAM.

Ricky Gipson appeals the order denying his motion to withdraw plea. We reverse and remand with directions to dismiss the motion for lack of jurisdiction.

Mr. Gipson pleaded guilty in two separate cases. The trial court entered judgments and sentences. Several days later, Mr. Gipson filed a notice of appeal. Thereafter, he filed a pro se motion to withdraw plea, asserting that his pleas were involuntary. See Fla. R. Crim. P. 3.170(l). The trial court summarily denied the motion, finding that no relief was warranted.

The trial court erred in denying the motion to withdraw plea; the notice of appeal divested the trial court of jurisdiction. See Mingo v. State, 914 So.2d 1070, 1070 (Fla. 2d DCA 2005) (“Because Mingo filed his pro se motion to withdraw plea after he filed his notice of appeal, the trial court was without jurisdiction to consider that motion.”); Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002) (“[B]y filing his notice of. appeal, Wilson divested the trial court of jurisdiction to enter any further rulings in the case, including a ruling on Wilson’s subsequently filed motion to withdraw his plea.”). By denying Mr. Gip-son’s motion, the trial court “inaccurately implied] that it entered a substantive ruling on the merits of the motion.” Mingo, 914 So.2d at 1070-71.

Accordingly, we reverse the order denying Mr. Gipson’s motion to withdraw his pleas and remand for the trial court to dismiss the motion for lack of jurisdiction. Our decision is without prejudice to any right Mr. Gipson may have to pursue timely relief under Florida Rule of Criminal Procedure 3.850. See Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004).

Reversed and remanded with directions.

NORTHCUTT, LaROSE, and SALARIO, JJ., Concur.