5D03-1428 Howard Dayton v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-1428

Case Date: 03/15/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

HOWARD L. DAYTON, SR., Appellant, v. STATE OF FLORIDA, Appellee. ___________________________________/ Opinion filed March 19, 2004 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge. James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, J. In this Anders1 appeal, Howard L. Dayton, Sr., seeks review of an order denying his motion to withdraw his plea, admitting that he violated the probationary portion of his split sentence. Pursuant to a plea agreement with the State, Dayton was sentenced to a year and a day for the violation. In his motion to withdraw that plea, Dayton claimed the plea was not voluntarily entered because he did not understand that the Department of Corrections could revoke almost ten years of gain time earned on his original split sentence. The trial court CASE NO. 5D03-1428

1

Anders v. California, 386 U.S. 738 (1967).

denied the motion, finding that the forfeiture of gain time was a collateral consequence and pointing out that Dayton had waived credit for time served as part of the plea.2 Dayton's motion to withdraw his plea was untimely, as it was filed more than thirty (30) days after rendition of the sentence. See Fla. R. Crim. P. 3.170(l). As explained in Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001), the failure to file a timely motion to withdraw a plea waives appellate review of issues related to the plea, and the defendant must seek relief by filing a timely rule 3.850 motion. Accordingly, we affirm the order denying Dayton's motion to withdraw his plea without prejudice to raise the voluntariness of the plea in a timely rule 3.850 motion. AFFIRMED.

PALMER and MONACO, JJ., concur.

It is not clear from the record that Dayton was waiving credit for prison time and/or gain time, rather than merely waiving credit for time served from the date of his arrest for violating probation. 2

2

Download 5D03-1428 Howard Dayton v. State.pdf