Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-3485 Alberto Milian, Judge.
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 court's 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 Rodriguez's
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
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
Rodriguez's 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 order.
counsel's 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 Rodriguez's 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) Rodriguez's
motion does not allege an adversarial relationship with his
counsel,  the State also properly and commendably
concedes that Rodriguez's 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 of
these reasons, we reverse the April 4, 2019 order and remand
with directions to strike Rodriguez's pro se
"Motion to Withdraw." We also reverse the subject
order to the extent that the order treats Rodriguez's
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 is without prejudice to any right Rodriguez
may have to seek timely postconviction relief. Id.
and remanded with directions.