Ashby v. State

ALTENBERND, Judge.

We affirm the trial court’s denial of Preston Ashby’s motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(Z) on the ground that the motion was untimely filed. Under the circumstances of this case, however, we are troubled by the trial court’s decision to resolve this motion as if it were an un-sworn motion filed pursuant to Florida Rule of Criminal Procedure 3.850. On remand, Mr. Ashby shall be permitted to file a motion to challenge his plea pursuant to rule 3.850.

On December 11, 1997, Mr. Ashby pleaded guilty to possession and delivery of cocaine.…