5D03-633 Timmie Henderson v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-633

Case Date: 01/19/2004

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

TIMMIE C. HENDERSON, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed January 23, 2004 Appeal from the Circuit Court for Orange County, James C. Dauksch, Jr., Senior, Judge. James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. SHARP, W., J. Henderson appeals fromthe trialcourt's order which revoked his probation, after accepting his plea of nolo contendere. He was sentenced to 18 months in prison, and no objection to the plea was raised prior to or at sentencing. Thereafter, Henderson filed a pro se pleading entitled "Request for Appeal," which in its body indicated he wanted to withdraw his plea due to a misunderstanding of the charges. CASE NO. 5D03-633

Without obtaining a ruling on his "Request," he filed a timely pro se notice of appeal. An amended notice of appeal was filed by the public defender. We affirm. Henderson claims on appeal that he is entitled to an evidentiary hearing on his motion to withdraw his plea. However, after a defendant has been sentenced, he must show a manifest injustice before he can successfully prevail in withdrawing his plea. See LeDuc v. State, 415 So. 2d 721 (Fla. 1982); Lynn v. State, 687 So. 2d 39 (Fla. 5th DCA 1997). Henderson has not demonstrated manifest injustice in this case, even if we considered he successfully preserved this issue for appeal. See Leonard v. State, 760 So. 2d 114, 116, n. 13 (Fla. 2000); Gray v. State, 847 So. 2d 1100 (Fla. 4th DCA 2003); Ruff v. State, 840 So. 2d 1145 (Fla. 5th DCA 2003). Our affirmance, however, is without prejudice to Henderson to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief seeking to withdraw his plea, should he be able to allege and demonstrate appropriate grounds for this relief. See Ruff; Lynn. AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

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