166 So. 3d 894
Fla. Dist. Ct. App.2015Background
- Appellant Mitchell E. Fox pled no contest to organized scheme to defraud under a plea bargain on August 2, 2010.
- Appellant was sentenced to 10 years in prison followed by 20 years of probation; no direct appeal was filed.
- On December 8, 2011, the court granted a downward departure so the incarceration term was reduced to eight years.
- On December 28, 2011, Fox moved pro se to withdraw his 2010 plea under Rule 3.170(l).
- The trial court denied the Rule 3.170(l) motion on May 28, 2013.
- The State appeals the denial, arguing the motion was untimely because filed more than 30 days after sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Rule 3.170(l) motion was timely | Fox argues timely waives jurisdiction if timely. | State contends motion filed after 30 days was untimely and no counsel is required. | Untimely; no appointment required. |
| Whether mitigation affected timeliness under Rule 3.170(l) or restarted the clock | Mitigation may restart time under a resentencing framework. | Mitigation is not a renditions of sentence and does not restart Rule 3.170(l) clock. | Mitigation did not restart timeliness; still untimely. |
| Whether mitigation under Rule 3.800(c) alters timeliness analysis for withdrawal of plea | Mitigation could trigger a new sentence and thus new timeliness. | Mitigation does not create a new sentencing event for Rule 3.170(l) purposes. | Mitigation does not render timely the Rule 3.170(l) motion; clock remains from original sentence. |
Key Cases Cited
- Garcia v. State, 846 So.2d 660 (Fla. 2d DCA 2003) (Rule 3.170(l) 30-day window; jurisdictional limits)
- Golden v. State, 84 So.3d 396 (Fla. 1st DCA 2012) (jurisdiction cannot be conferred by waiver after window)
- State v. Schafer, 583 So.2d 374 (Fla. 4th DCA 1991) (jurisdictional consequences of untimely motions)
- Peters v. State, 128 So.3d 832 (Fla. 4th DCA 2013) (resentencing and due process rights context)
- St. Lawrence v. State, 785 So.2d 728 (Fla. 5th DCA 2001) (resentencing standards and process)
- Kopson v. State, 39 Fla. L.Weekly D2165 (Fla. 4th DCA 2014) (resentencing and renewals in postconviction context)
- Griffin v. State, 979 So.2d 1253 (Fla. 4th DCA 2008) (mitigation versus resentencing; effects on timeliness)
- McCormick v. State, 961 So.2d 1099 (Fla. 2d DCA 2007) (timeliness of post-sentence motions; jurisdictional limits)
- Rybolt v. State, 25 So.3d 682 (Fla. 2d DCA 2010) (lapse of sixty days -> loss of jurisdiction for Rule 3.800(c) motions)