NIEVES v. STATE (2020)

District Court of Appeal of Florida, Fifth District.

Jose Dolores NIEVES, Jr., Appellant, v. STATE of Florida, Appellee.

Case No. 5D20-78

Decided: August 21, 2020

James S. Purdy, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

Jose Dolores Nieves, Jr. appeals his sentence after entering a guilty plea for burglary of a structure using a motor vehicle. Because Nieves failed to file a motion to withdraw his plea, we are without jurisdiction. See Hammonds v. State, 275 So. 3d 797, 797–98 (Fla. 5th DCA 2019); Ovenshire v. State, 278 So. 3d 103, 103 (Fla. 5th DCA 2019); Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005). But see Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA) (receding from the position that a criminal defendant who may be incompetent to proceed must file a motion to withdraw plea to preserve the issue of his or her competency to enter the plea for appellate review), review granted, No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018). Consequently, we dismiss the appeal, but we do so without prejudice to Nieves's right to seek appropriate and timely postconviction relief below.

DISMISSED.

PER CURIAM.

GROSSHANS, SASSO, and TRAVER, JJ., concur.

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