LOEFFLER v. STATE (2006)

Daniel Loeffler challenges his convictions for trafficking in cocaine, twenty-eight grams or more, and possession of cocaine with intent to sell, resulting in ten-year sentences concurrent for each count.   His counsel has filed an Anders¹ brief, and Loeffler has filed a pro se brief raising three issues.   We affirm the convictions and sentences because, after independent review of the record, we agree with counsel's assessment that there are no issues of arguable merit for the appeal.   We write to address one point raised in the pro se brief.

Loeffler raises an issue based upon a filing by defense counsel on October 10, 2005, wherein counsel moved to withdraw based on conflict.   Loeffler asserts that fundamental error occurred below because the trial court did not hold a hearing on the motion.

The record reflects that counsel's motion was filed after a bench warrant had been issued for Loeffler's arrest.   The circuit court minutes indicate that Loeffler failed to appear for a hearing on October 3, 2005, and that a warrant was issued.   Counsel filed his motion to withdraw on October 10, 2005, and Loeffler was arrested and brought to first appearance on October 12, 2005.   Counsel later represented Loeffler at his sentencing hearing and the motion to withdraw was not discussed.

We reject Loeffler's assertion that these facts alone support a conclusion that fundamental error occurred below.   Because more factual development is needed before this court can conclude that any error occurred, any potential issue arising from these facts cannot be resolved on direct appeal.   We therefore affirm without prejudice to Loeffler's right to raise his issue by appropriate motion in the trial court.   See Whitaker v. State, 433 So.2d 1352, 1353 (Fla. 3d DCA 1983).

FOOTNOTES

1.   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

FULMER, Chief Judge.

DAVIS and CANADY, JJ., Concur.