Third District Court of Appeal
State of Florida
Opinion filed August 4, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-599
Lower Tribunal No. F18-17745
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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.
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