NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BRIAN MICHAEL CHIPMAN, )
)
Appellant, )
)
v. ) Case No. 2D18-2134
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed December 4, 2019.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pasco County; Kimberly Campbell,
Judge.
Brian Michael Chipman, pro se.
Ashley Moody, Attorney General,
Tallahassee, and Linsey
Sims-Bohnenstiehl, Assistant Attorney
General, Tampa, for Appellee.
PER CURIAM.
Brian Michael Chipman appeals the trial court's order dismissing his
motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure
3.170(l). He argues that the court erred in dismissing his motion for lack of jurisdiction
because it was filed within thirty days of the imposition of his new sentence and before
he filed a notice of appeal in Case No. 2D18-1067. We agree and reverse.
Chipman successfully challenged his sentence as being illegal because
one of his prior convictions did not constitute a qualifying offense for purposes of a
Violent Career Criminal (VCC) designation. See § 775.084(1)(d), (e), Fla. Stat. (2012).
The trial court resentenced Chipman on February 16, 2018, and entered the written
sentence on February 20, 2018. Within thirty days of the imposition of the new
sentence, on February 26, 2018, Chipman filed a rule 3.170(l) motion alleging that his
plea was involuntarily entered. This motion was filed before Chipman filed a notice of
appeal of his sentence on March 16, 2018, in Case No. 2D18-1067.
Pursuant to Florida Rule of Appellate Procedure 9.020(i),1 an order is
rendered when a signed, written order is filed with the clerk of the lower court.
However, if a rule 3.170(l) motion has been filed, "the final order shall not be deemed
rendered as to any existing party until the filing of a signed, written order disposing of
the" motion. Fla. R. App. P. 9.020(i)(1). Moreover, if a rule 3.170(l) motion has been
filed before a notice of appeal, "the appeal shall be held in abeyance until the filing of a
signed, written order disposing of the" motion. Fla. R. App. P. 9.020(i)(3).
Here, because the rule 3.170(l) motion was timely filed, the motion tolled
rendition of Chipman's sentence. As such, Chipman's appeal should have been held in
1Rule 9.020(i) was amended on October 25, 2018, but the amendments
did not become effective until January 1, 2019, after the notice of appeal in this case
was filed. The new amendment re-lettered subdivision (i) as subdivision (h). The
substance of the rule was not changed materially. In re Amendments to Florida Rules
of Appellate Procedure—2017 Regular-Cycle Report,
256 So. 3d 1218, 1219 (Fla.
2018).
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abeyance until the court disposed of his rule 3.170(l) motion. See Carroll v. State,
157
So. 3d 385, 385–86 (Fla. 2d DCA 2015) (holding trial court had jurisdiction to rule on the
defendant's motion to withdraw plea even though the defendant's appeal was pending
because the motion to withdraw plea was filed before the notice of appeal); Balzer v.
State,
100 So. 3d 173, 174–75 (Fla. 2d DCA 2012) (dismissing appeal as premature
and remanding to trial court with directions to allow the defendant to proceed with his
rule 3.170(l) motion, which was filed before his notice of appeal).
In Case No. 2D18-1067, Chipman filed a motion to hold the appeal of his
sentence in abeyance until the trial court ruled on his rule 3.170(l) motion. On April 12,
2018, this court denied that motion and concluded that the trial court lacked jurisdiction
to consider Chipman's rule 3.170(l) motion. Relying on this court's order denying
Chipman's motion to hold the appeal of his sentence in abeyance, the trial court entered
an order dismissing Chipman's rule 3.170(l) motion for lack of jurisdiction.
However, because rendition of the judgment and sentence had been tolled
as a matter of law, the trial court did have jurisdiction over Chipman's rule 3.170(l)
motion, which had been timely filed after his resentencing. See Passino v. State,
174
So. 3d 1055, 1056–57 (Fla. 4th DCA 2015) ("Because resentencing is a new
proceeding, the sentencing process starts afresh. . . . [R]esentencing constitutes, for all
intents and purposes, the 'rendition' of a new sentence." (quoting Fox v. State, 166 So.
3d 894, 896 (Fla. 4th DCA 2015))). This court has vacated its April 12, 2018, order
denying the motion to hold the appeal in abeyance and relinquished jurisdiction to the
trial court to rule on the merits of Chipman's rule 3.170(l) motion. We now reverse the
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trial court's order, which was erroneously entered in reliance on our now-withdrawn
order, and remand for further proceedings.
Reversed and remanded.
KHOUZAM, C.J., and KELLY and ATKINSON, JJ., Concur.
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