FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Pasco County; Kimberly Campbell, Judge.
Michael Chipman, pro se.
Moody, Attorney General, Tallahassee, and Linsey
Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for
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.
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.
to Florida Rule of Appellate Procedure 9.020(i),
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).
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 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).
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
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 trial court's order, which was erroneously entered in
reliance on our now-withdrawn order, and remand for further
KHOUZAM, C.J., and KELLY and ...