Baker v. State , 2016 Fla. App. LEXIS 14119 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GEORGE BAKER, )
)
Appellant, )
)
v. ) Case No. 2D16-593
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 21, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; William H. Burgess, III,
Judge.
LUCAS, Judge.
George Baker appeals the postconviction court's order striking as a nullity
his pro se motion filed under Florida Rule of Criminal Procedure 3.850. Although Mr.
Baker had appointed counsel at the time he filed his motion, we reverse the court's
order because Mr. Baker's counsel had only been appointed to represent him for his
revocation of probation proceeding.
In its order striking Mr. Baker's motion, the postconviction court stated that
on January 21, 2015, Mr. Baker pleaded guilty to grand theft and was sentenced to
probation for two years. In July 2015, an amended affidavit of violation of probation was
filed, and the public defender was appointed to represent Mr. Baker in the revocation of
probation proceeding shortly thereafter. Mr. Baker later filed his pro se rule 3.850
motion on January 7, 2016. Citing Murray v. State, 1 So. 3d 407, 408 (Fla. 2d DCA
2009), the postconviction court struck Mr. Baker's motion as a nullity because he was
represented by counsel at the time he filed it.
In Murray, we observed that "[a] defendant does not have the right to file
pro se motions while also represented by counsel, and such motions should be treated
as nullities" unless counsel adopts them or the defendant unequivocally seeks to
discharge counsel. Id. at 408. But as we made clear in Murray, this prohibition only
extends to the proceedings in which counsel represents the defendant. Id. at 408-09.
Thus, we concluded that Mr. Murray's pro se rule 3.853 motion, which had been filed
after counsel had been appointed to represent him in a rule 3.850 proceeding, should
have been considered by the postconviction court. Id. We reversed the postconviction
court's order striking his pro se motion because nothing in the record indicated that Mr.
Murray's counsel had been appointed to represent him in a rule 3.853 proceeding and
the postconviction court never attempted to determine whether his appointed counsel
would adopt his pro se motion before dismissing it. Id. at 409.
Similar to Murray, in the case at bar, the public defender has been
appointed in Mr. Baker's revocation of probation proceeding, but there is nothing within
the record before us to indicate whether this appointment encompassed a rule 3.850
postconviction proceeding. Indeed, in this case's context, such an appointment would
appear to be counter-intuitive because the scope of the public defender's representation
in criminal proceedings ordinarily does not extend to summary postconviction
proceedings. See § 924.066(3), Fla. Stat. (2015) ("A person in a noncapital case who is
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seeking collateral review under this chapter has no right to a court-appointed lawyer.");
Williams v. State, 99 So. 3d 593, 595 (Fla. 2d DCA 2012) ("The duties of public
defenders, as enumerated in section 27.51, Florida Statutes (2008), do not include
postconviction representation."); Perry v. State, 869 So. 2d 41, 42 (Fla. 2d DCA 2004)
(affirming postconviction court's dismissal of a rule 3.800(a) motion filed by a public
defender because the public defender had only been appointed to represent the
defendant on appeal and "under section 27.51 . . . the public defender . . . was not
authorized to file [the defendant's] collateral attack"); Mann v. State, 937 So. 2d 722,
726 (Fla. 3d DCA 2006) (affirming postconviction court's finding that the public defender
did not represent defendant in postconviction proceedings and observing "[t]he right to
representation in a postconviction collateral proceeding is generally derived by statute
and only becomes constitutionally mandated if the postconviction motion presents a
meritorious claim and a hearing on the motion is potentially so complex that counsel is
necessary" (citing Russo v. Akers, 724 So. 2d 1151, 1152 (Fla. 1998))).
Because counsel was not appointed to represent Mr. Baker in a rule 3.850
postconviction proceeding, Mr. Baker's pro se rule 3.850 motion was not a nullity, and
the postconviction court erred in striking it. Accordingly, we reverse and remand for the
postconviction court to address Mr. Baker's motion.
Reversed and remanded.
CASANUEVA and SILBERMAN, JJ., Concur.
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