RODRIGUEZ v. STATE (2019)

ON CONFESSION OF ERROR

Ronnie 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 motion.

On or 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 time served.

On 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.

Trial 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),¹ governing motions to withdraw a criminal plea of guilty or nolo contendere after sentencing. Escobar, 126 So. 3d at 279.

The 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,² 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 motion.”).

For 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.

Reversed and remanded with directions.

FOOTNOTES

1.   Rule 3.170(l) provides:Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

2.   Rodriguez's motion directs its ire at the Florida Department of Corrections. We, therefore, conclude that the limited exception to striking pro se pleadings based on allegations giving rise to an adversarial relationship with defense counsel does not apply here. See Escobar, 126 So. 3d at 280-81.

PER CURIAM.