       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 3, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-805
                          Lower Tribunal No. 14-9291
                             ________________


                             Linton E. Seymour,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jorge
Rodriguez-Chomat, Judge.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.


Before SUAREZ, C.J., and SALTER and EMAS, JJ.

      SUAREZ, C.J.

      Linton Seymour appeals from the trial court’s order denying his Rule 3.850
motion to vacate sentence. For the reasons stated below, we reverse and remand.1

      Seymour filed a pro se Motion to Vacate, Set Aside, or Correct Sentence

pursuant to Florida Rule of Criminal Procedure 3.850. The motion raised four

issues: 1) The judgment or sentence was entered in violation of federal and state

law; 2) The court had no jurisdiction to enter judgment; 3) The court had no

jurisdiction to impose sentence; and 4) The plea was involuntary and forcible.

[sic] The motion was unsupported and unsworn, but the trial judge did not find it

legally insufficient or advise Seymour that he could have sixty days to amend

pursuant to 3.850(e). Instead, the trial court brought the defendant into court,

without counsel and without swearing him in, and questioned him about his plea

agreement. When Seymour stated that he wanted to wait for his lawyer, the trial

court reset the hearing for the next day. The next day the trial court held a hearing

during which the judge questioned the defendant’s counsel about the 3.850 claims

and whether counsel had explained to Seymour the plea agreement that Seymour

had signed.    Counsel took the stand, unsworn, and stated that he discussed

everything with Seymour and that the plea was informed, voluntary and

uncoerced. The trial court summarily denied the Rule 3.850 petition.

      On appeal, Defendant argues that the two hearings were evidentiary hearings

where there was no notice that the hearings were evidentiary in nature, no parties


1This opinion in no way addresses, nor should it be construed as addressing, the
merits of Defendant’s motion to vacate sentence.
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were sworn in, there was no opportunity to call witnesses or cross examine

witnesses and the order contained no findings of fact or conclusions of law

necessary to support the denial of a 3.850 petition with evidentiary hearing.

      We agree with Seymour, and the State concedes, that the procedure followed

by the trial court was not an effective evidentiary hearing with notice, appropriate

response by the state, or with findings of fact and conclusions of law. Neither was

it a ruling on the motion without hearing, stating the trial court’s reasoning and

attaching pertinent parts of the record as required by Rule 3.850(f), Florida Rules

of Criminal Procedure.

      We further note that the State’s argument that this Court lacks jurisdiction

over this appeal is not well taken. The Defendant filed his Notice of Appeal of the

trial court’s verbal ruling denying his Motion to Vacate Sentence on April 7, 2015.

However, the final written Order was not rendered by the trial court until May 7,

2015. Therefore, the State argues, we lack jurisdiction. The State fails to consider

that this Court did not dismiss the appeal prior to the entry of the final order.

Therefore, pursuant to Rule 9.110(l), Florida Rules of Appellate Procedure this

Court has jurisdiction. In pertinent part the Rule states:

      (l) Premature Appeals. Except as provided in rule 9.020(i), if a notice
      of appeal is filed before rendition of a final order, the appeal shall be
      subject to dismissal as premature. However, the lower tribunal retains
      jurisdiction to render a final order, and if a final order is rendered
      before dismissal of the premature appeal, the premature notice of
      appeal shall be considered effective to vest jurisdiction in the
      court to review the final order. Before dismissal, the court in its

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      discretion may grant the parties additional time to obtain a final order
      from the lower tribunal. (emphasis added)

See also Williams v. State, 324 So. 2d 74, 79 (Fla. 1975) (holding that a

prematurely filed notice of appeal shall not be subject to dismissal but shall be held

in abeyance until the judgment in the respective civil or criminal case is rendered,

at which time the notice of appeal shall mature and vest jurisdiction in the

appellate court). Therefore, the Notice of Appeal was effective to vest this Court

with jurisdiction over this appeal.

      We therefore vacate the trial court’s order and remand for an amended order

to be entered on claims one through three of Seymour’s postconviction motion.

Should the trial court summarily deny those claims, it shall attach those portions of

the record that conclusively refute the claims. Fla. R. Crim. P. 3.850(f)(4). As

well, the trial court shall conduct another evidentiary hearing on Seymour’s fourth

claim of involuntary plea, complete with notice and opportunity to be heard; the

order shall determine the issue and make appropriate findings of fact and

conclusions of law. Fla. R. Crim. P. 3.850(f)(8). The reversal is without prejudice

to Seymour to provide additional substance for his claim of involuntary plea.

      Reversed and remanded.




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