Carroll v. State , 157 So. 3d 385 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CONNELL L. CARROLL, )
)
Appellant, )
)
v. ) Case No. 2D13-5673
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed January 30, 2015.
Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.
Howard L. Dimmig, II, Public Defender, and
Judith Ellis, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Appellee.
VILLANTI, Judge.
Connell L. Carroll appeals the trial court's order striking his motion to
withdraw plea on the basis that it lacked jurisdiction. Because the trial court had
jurisdiction to rule on Carroll's motion and failed to do so, we must reverse. We also
reverse because the trial court failed to render an order of competency after it
previously found Carroll incompetent to proceed.
Carroll was charged with second-degree murder with a firearm and
resisting or obstructing an officer without violence. He was initially adjudged
incompetent to proceed to trial, but following a hearing, his competency was ultimately
restored. Thereafter, on August 26, 2013, Carroll pleaded nolo contendere to both
counts and was sentenced to life imprisonment on the second-degree murder count and
to time served on the resisting count. On November 6, 2013, Carroll filed a motion to
withdraw plea, followed by a notice of appeal on November 21, 2013. On
November 22, 2013, the trial court filed an order striking Carroll's motion to withdraw
plea as being premature. The trial court later struck this order and rendered an order
striking Carroll's motion to withdraw plea for lack of jurisdiction.
On the first issue, Carroll argues that the trial court had jurisdiction to rule
on his motion to withdraw plea, and thus the order striking it was error. Florida Rule of
Appellate Procedure 9.020(i)(3) specifically provides:
[A] pending motion . . . to withdraw the plea after sentencing
shall not be affected by the filing of a notice of appeal from a
judgment of guilt. In such instance, the notice of appeal shall
be treated as prematurely filed and the appeal held in
abeyance until the filing of a signed, written order disposing
of such motion.
Therefore, the trial court had jurisdiction to decide the motion to withdraw plea even
though Carroll had filed a notice of appeal. The correct ruling would have been to
simply hold the notice of appeal in abeyance until the court ruled on the motion to
withdraw plea, not to deny the motion on jurisdictional grounds or as premature.
Accordingly, we reverse the order striking Carroll's motion to withdraw his plea and
-2-
remand for the trial court to address the motion on the merits. See Luckett v. State, 56
So. 3d 914, 915 (Fla. 2d DCA 2011); see also Sharp v. State, 884 So. 2d 510, 511 (Fla.
2d DCA 2004) (finding reversal of an order dismissing a motion to withdraw plea to be
the appropriate remedy when "the trial court had jurisdiction to consider [the
defendant's] first motion").
On the second issue, Carroll argues that the trial court was required to
render a written order finding him competent to stand trial pursuant to the Florida Rule
of Criminal Procedure 3.212(c)(7). On this point, Carroll is also correct. Rule
3.212(c)(7) provides: "If, at any time after such commitment, the court decides, after
hearing, that the defendant is competent to proceed, it shall enter its order so finding
and shall proceed." (Emphasis supplied.) See also Corbitt v. State, 744 So. 2d 1130(Fla. 2d DCA 1999). Even when the trial court has previously made a written finding of
competency on a signed "minutes" form, this still does not satisfy the requirement to
enter an order as set forth by the rules of criminal procedure. See Fla. R. App. P.
9.020(f) (defining an order as "[a] decision, order, judgment, decree, or rule of a lower
tribunal, excluding minutes and minute book entries" (emphasis added)); see also State
v. Wagner, 863 So. 2d 1224, 1227 (Fla. 2004) (holding that "a court minutes form, even
if signed by the judge, does not constitute a reviewable order"). Hence, we also reverse
on the second issue and remand for entry of a written order finding Carroll competent to
proceed.
Reversed and remanded with instructions.
NORTHCUTT and KELLY, JJ., Concur.
-3-