Tanzler v. State , 2009 Fla. App. LEXIS 2920 ( 2009 )

6 So. 3d 711 (2009)

Christopher TANZLER, Appellant,
v.
STATE of Florida, Appellee.

No. 5D08-2949.

District Court of Appeal of Florida, Fifth District.

April 9, 2009.

James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Christopher M. Tanzler, Perry, pro se.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.

EN BANC

TORPY, J.

In this direct appeal from his criminal conviction, Appellant filed a pro se Florida Rule of Criminal Procedure 3.800(b)(2) motion after we permitted him to file an initial brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), but before we permitted counsel to withdraw. Our Clerk, in reliance on Rodriguez v. State, 881 So. 2d 671 (Fla. 5th DCA 2004), ordered Appellant's counsel to show cause why Appellant's rule 3.800(b)(2) motion should not be stricken because it was not signed by counsel and not timely filed. Having considered Appellant's response, we permit Appellant to proceed. In doing so, we recede from our decision in Rodriguez.

Since we decided Rodriguez, two of our sister courts have expressed conflict. Lopez v. State, 905 So. 2d 1045 (Fla. 2d DCA 2005); Proctor v. State, 901 So. 2d 994 (Fla. 1st DCA 2005). We are persuaded by and adopt their reasoning.

PALMER, C.J., GRIFFIN, SAWAYA, ORFINGER, MONACO, LAWSON, EVANDER and COHEN, JJ., concur.