JOSE DOLORES NIEVES, JR. vs STATE OF FLORIDA

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED JOSE DOLORES NIEVES, JR., Appellant, v. Case No. 5D20-144 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed August 21, 2020 Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge. 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. PER CURIAM. Jose Dolores Nieves, Jr. appeals his sentence after entering an open plea for burglary of a structure. 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. GROSSHANS, SASSO and TRAVER, JJ., concur. 2

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