We lack jurisdiction to consider Vestal's argument with regard to the plea proceeding because Vestal did not file a motion to withdraw her plea with the trial court. See Fla.R.App.P. 9.140(b)(2)(A)(ii)c.; see also Hicks v. State, 915 So.2d 740 (Fla. 5th DCA 2005) (defendant's alleged incompetency at the time of entry of guilty or no contest plea is issue bearing upon voluntariness of defendant's plea and may not be raised on appeal where no motion to withdraw plea has been filed with trial court). Florida Rule of Appellate Procedure 9.140(b)(Z)(A)(ii)c. provides:
We note that we and other District Courts of Appeal have previously required the defendant to file a motion to withdraw a plea before pursuing the competency issue on appeal if the defendant had not previously been found incompetent. SeeBurns , 884 So.2d at 1012–13 ; Garcia–Manriquez v. State , 146 So.3d 134, 134 (Fla. 3d DCA 2014) ; Hicks v. State , 915 So.2d 740, 741 (Fla. 5th DCA 2005). The First and Second Districts have however reversed judgments and sentences on this issue even without a prior adjudication of incompetency.
Campbell's trial counsel never moved to have Campbell's competency evaluated, nor was any mention made at the hearing about Campbell's competency. While "[a] defendant's competency at the time he enters a guilty or no contest plea is an issue bearing upon the voluntary and intelligent character of the defendant's plea," Hicks v. State , 915 So. 2d 740, 741 (Fla. 5th DCA 2005) (citing Trawick v. State , 473 So. 2d 1235, 1238 (Fla. 1985) ), before raising such an issue on appeal, the defendant must first file a motion to withdraw the plea with the trial court. Id. ; see also Fla. R. App. P. 9.140(b)(2)(A)(ii) c. (providing that a defendant who pleads guilty or nolo contendere may directly appeal an involuntary plea only if preserved by a motion to withdraw plea); Leonard v. State , 760 So. 2d 114, 119 n.13 (Fla. 2000) (noting that for a direct appeal raising the voluntary and intelligent character of the plea, this issue must be preserved for appeal by first filing a motion to withdraw the plea in the trial court).
In the past, we have dismissed appeals under similar circumstances for lack of jurisdiction because the issue was unpreserved. See, e.g., Hicks v. State, 915 So. 2d 740 (Fla. 5th DCA 2005). However, the supreme court has determined that it is an issue of preservation of error, not jurisdiction.
Id . The Fourth District certified conflict with the decisions in Pressley v. State , 227 So. 3d 573 (Fla. 1st DCA 2017) ; Garcia-Manriquez v. State , 146 So. 3d 134 (Fla. 3d DCA 2014) ; and Hicks v. State , 915 So. 2d 740 (Fla. 5th DCA 2005). We accepted jurisdiction to resolve the conflict.
Because Appellant failed to file a motion to withdraw his plea in the trial court, this Court is without jurisdiction to hear the instant appeal. See State v. Dorch, 317 So.3d 1074, 1084 (Fla. 2021) ("We hold that there is no fundamental-error exception to the preservation requirement of rule 9.140(b)(2)(A)(ii)(c)."); Hicks v. State, 915 So.2d 740 (Fla. 5th DCA 2005) (holding that the District Court did not have jurisdiction to hear the claim that plea was not voluntary and intelligent where the defendant failed to file a motion to withdraw the plea in trial court). Accordingly, we dismiss the appeal without prejudice so that Appellant can properly seek to withdraw his plea in the trial court.
Because Sanchez failed to file a motion to withdraw his plea, we are without jurisdiction. SeeHicks v. State , 915 So. 2d 740, 741 (Fla. 5th DCA 2005) (holding defendant's competency at time of guilty or no contest plea is issue bearing upon voluntary and intelligent character of defendant's plea, which falls within limited class of issues defendant may raise on appeal from guilty or no contest plea provided defendant first files motion to withdraw plea in trial court). But seeDortch v. State , 242 So. 3d 431, 433 (Fla. 4th DCA 2018) (receding from position that criminal defendant who may be incompetent to proceed must file motion to withdraw plea to preserve issue of his or her competency to enter plea for appellate review), review granted , No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018).
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).
Because Isom failed to file a motion to withdraw his plea based on the competency issue, and because of this Court's controlling precedent, we are without jurisdiction to consider that matter. SeeHammonds v. State , 275 So. 3d 797 (Fla. 5th DCA 2019) (citing Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005) ; Murphy v. State , 181 So. 3d 574 (Fla. 5th DCA 2015) ; Campos-Carriera v. State , 106 So. 3d 483 (Fla. 5th DCA 2013) ; Vestal v. State , 50 So. 3d 733, 735 (Fla. 5th DCA 2010) ; Bailey v. State , 21 So. 3d 147, 150 (Fla. 5th DCA 2009) ). But seeDortch v. State , 242 So. 3d 431, 433 (Fla. 4th DCA) (receding from position that defendant who may be incompetent to proceed must file motion to withdraw plea to preserve issue of his competency for appellate review), review granted , Case No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018).
Because Hammonds failed to file a motion to withdraw his plea based on the competency issue, we are without jurisdiction to consider that matter. See Hammonds v. State, 275 So. 3d 797 (Fla. 5th DCA 2019) ; Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005) ; accord Murphy v. State, 181 So. 3d 574 (Fla. 5th DCA 2015) ; Campos-Carriera v. State, 106 So. 3d 483 (Fla. 5th DCA 2013) ; Vestal v. State, 50 So. 3d 733, 735 (Fla. 5th DCA 2010) ; Bailey v. State, 21 So. 3d 147, 150 (Fla. 5th DCA 2009). But see Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA), review granted, SC18-681, 2018 WL 3635017 (Fla. July 11, 2018).