Huff v. State

937 So. 2d 258, 2006 Fla. App. LEXIS 14897, 2006 WL 2548570

Opinion

PER CURIAM.

In this consolidated appeal, Richard M. Huff appeals his final judgment of conviction and sentence in case number 3D05-3000 and the denial of his motion to withdraw plea entered on a probation violation charge in case number 3D06-270. We affirm Huffs final judgment of conviction and sentence, but reverse the denial of his motion to withdraw plea because the trial court was without jurisdiction to rule on the motion.

Huff filed an appeal of his final judgment of conviction and sentence on September 23, 2005. Two days later, he filed a Motion to Withdraw Plea and Request for Evidentiary Hearing and Appointment of Conflict-Free Counsel which the trial court subsequently denied.

Because Huff filed his motion during the pendency of his direct appeal from the final judgment of conviction and sentence, the trial court lacked jurisdiction to consider or rule on the motion to withdraw plea. See Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004). We therefore reverse the denial of the motion to withdraw plea without prejudice to any right Huff may have to file a rule 3.850 motion for post-conviction relief, and affirm Huffs final judgment of conviction and sentence.

Affirmed in part and reversed in part.