Wisniewski v. State ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANDREW WISNIEWSKI, )
)
Appellant, )
)
v. ) Case No. 2D14-995
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 14, 2015.
Appeal from the Circuit Court for
Manatee County; Edward Nicholas,
Judge.
Howard L. Dimmig, II, Public Defender,
and Starr L. Brookins, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Donna S. Koch,
Assistant Attorney General, Tampa, for
Appellee.
BLACK, Judge.
This appeal was originally filed pursuant to Anders v. California, 386 U.S.
738 (1967). However, upon our review of the record it was apparent that whether the
trial court erred in striking Andrew Wisniewski's pro se motion to withdraw plea was an
issue arguable on its merits. As such, we ordered merits-based briefing. See Chapman
v. State, 40 Fla. L. Weekly D1597 (Fla. 2d DCA July 10, 2015) (striking Anders briefing
and requiring merits briefing).
Because the trial court's order struck Wisniewski's motion as a nullity
based on Wisniewski having counsel, the parties were directed to address whether
striking the motion was appropriate in light of Sheppard v. State, 17 So. 3d 275 (Fla.
2009). In response to this court's order, the initial brief included citation only to
Sheppard with no substantive discussion otherwise. The State's answer brief did not
address whether the court applied the correct law in striking the motion as a nullity but
instead focused on the ultimate issue of whether the motion sufficiently alleged facts
supporting coercion. Neither brief is particularly helpful.
The trial court's order cites Logan v. State, 846 So. 2d 472 (Fla. 2003),
and specifically states: "Regardless of the Defendant's contentions raised in his present
Motion, Florida courts have consistently held that pro se pleadings filed by defendants
who have representation are a 'nullity having no legal force or effect.' " (Emphasis
added.) The order also states that whether Wisniewski intended to file his motion to
withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(l) or 3.850, his
motion would be stricken as a nullity. Thus it is clear that the court's ruling was not
based on the allegations in the motion but solely on the fact that Wisniewski was
represented by counsel. The court failed to consider whether Wisniewski's motion
contained allegations sufficient under Sheppard to warrant consideration on the merits.
See Sheppard, 17 So. 3d at 277 ("[A] limited exception to the rule of striking pro se
pleadings as nullities exists where a defendant files a pro se motion to withdraw a plea
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pursuant to rule 3.170(l ), which contains specific allegations that give rise to an
adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion
that led to the entry of the plea. In these narrow circumstances, . . . the trial court is
required . . . to determine whether an adversarial relationship exists such that defense
counsel can no longer continue to represent his or her client at a hearing in which
counsel will likely be an adverse witness.").
Accordingly, we reverse and remand for the trial court to consider whether
Wisniewski's motion sufficiently alleged an adversarial relationship. See Peterson v.
State, 881 So. 2d 1129 (Fla. 4th DCA 2004) ("Therefore, without reaching the merits,
we reverse and remand for further consideration by the trial court."), approved of by
Sheppard, 17 So. 3d at 277; see also Gonzalez v. State, 21 So. 3d 169, 170 (Fla. 2d
DCA 2009) ("[W]e reverse and remand with directions to reconsider the motion to
withdraw plea based on the procedure outlined in Sheppard."); Escobar v. State, 126
So. 3d 277, 281 (Fla. 3d DCA 2011) (reversing and remanding where "[t]he trial court
erred by not considering first whether this (or any other) allegation was sufficient to
constitute" an adversarial relationship between Escobar and his attorney); Bruce v.
State, 38 So. 3d 869, 870 (Fla. 3d DCA 2010) (reversing and remanding for
consideration under Sheppard where "[t]he trial court denied both motions on the
ground that each was a nullity" and advised Bruce that he could not file his own motions
because he had an attorney). Should the motion be denied on its merits, the trial court
shall reinstate Wisniewski's judgment and sentence.
Reversed and remanded with instructions.
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CASANUEVA and KHOUZAM, JJ., concur.
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