Appeal from the Circuit Court for Miami-Dade County, Alberto
Milian, Judge. Lower Tribunal No. 16-3485
Rodriguez, in proper person.
Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
SCALES, HENDON and LOBREE, JJ.
ON CONFESSION OF ERROR
Rodriguez appeals the trial courts April 4, 2019 order
denying his pro se "Motion to Withdraw
Plea," which the lower court treated as a Florida Rule
of Criminal Procedure 3.850 postconviction motion. Concluding
that the trial court should have (i) treated Rodriguezs
motion as a Florida Rule of Criminal Procedure 3.170(l)
motion to withdraw the plea after sentencing, and (ii) struck
the motion as unauthorized because Rodriguez was represented
by counsel below and the motion did not allege an adversarial
relationship with counsel, we reverse and remand with
directions to strike the motion.
about December 31, 2018, in lower tribunal case number
F16-3485, Rodriguez pled guilty to charges of possession of a
firearm by a convicted felon, resisting an officer without
violence and possession of cannabis. Rodriguez was
represented by an assistant public defender when he entered
his plea. The trial court sentenced Rodriguez to 49.8 months
in prison, with a three-year minimum mandatory for the
firearm possession charge, giving Rodriguez credit for all
January 17, 2019, Rodriguez, while still represented by
counsel, delivered his pro se "Motion to
Withdraw Plea" to prison officials, who then forwarded
the motion to the circuit court. On April 4, 2019, treating
Rodriguezs motion as a rule 3.850 motion for postconviction
relief, the trial court entered an order denying the motion
as legally insufficient. Rodriguez appeals this April 4, 2019
counsels obligation of representation to his or her client
"does not end upon the rendition of a judgment of
conviction and sentence, but continues thereafter until
either a notice of appeal is filed and related tasks
completed, the time for filing the notice has passed, or good
cause is shown upon written motion." Escobar v.
State, 126 So.3d 277, 279 (Fla. 3d DCA 2011): Fla. R.
Crim. P. 3.111(e). Trial counsel, therefore, continues to
represent a criminal defendant for the purposes of seeking
relief under rule 3.170(l), governing motions to
withdraw a criminal plea of guilty or nolo contendere after
sentencing. Escobar, 126 So.3d at 279.
State now properly and commendably concedes that the trial
court should have treated Rodriguezs motion as a timely rule
3.170(l) motion. Moreover, because (i) Rodriguez was
represented by an assistant public defender at all relevant
times in the lower proceeding (i.e., both at the plea
colloquy and when Rodriguez submitted his pro se
motion after sentencing), and (ii) Rodriguezs motion does
not allege an adversarial relationship with his
counsel, the State also properly and
commendably concedes that Rodriguezs motion was unauthorized
and should have been stricken as a nullity. Id. ;
Murray v. State, 909 So.2d 998, 999 (Fla. 2d DCA
2005) ("A timely rule 3.170(l) motion filed pro se while
the defendant is still represented by
appointed counsel is a nullity which must be stricken and
should not be considered by the trial court as any other type
these reasons, we reverse the April 4, 2019 order and remand
with directions to strike Rodriguezs pro se
"Motion to Withdraw." We also reverse the subject
order to the extent that the order treats Rodriguezs motion
as one filed pursuant to rule 3.850 and disposes of it on the
merits under that rule. Murray, 909 So.2d at 999.
Our decision ...