JOHN A. LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John A. Lee, represented by appellate counsel, filed a pro se notice of pending motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) during his criminal appeal. The court struck the notice, holding that Rule 3.800(b)(2) is reserved for appellate counsel or unrepresented defendants, not for represented parties acting pro se.
A represented criminal defendant may not file pro se notices of pending motions to correct sentencing error under Rule 3.800(b)(2). This mechanism is confined to appellate counsel or, in rare instances, pro se litigants proceeding without counsel on direct appeal.
[1] A represented criminal defendant may not file a pro se motion to correct sentence while an appeal is pending.
[2] A pro se litigant may only utilize the mechanism for correcting sentences during the pendency of criminal appeals when electing to proceed without counsel on direct appea…
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Join FLexlaw to unlock all legal intelligence“The recent amendment to rule 3.800 provides an avenue for the correction of sentences during the pendency of criminal appeals, and its province is confined to the individuals responsible for the prosecution or defense of the appeal, which customarily will be appellate counsel.”
Establishes that Rule 3.800(b)(2) is limited to those responsible for the appeal, typically appellate counsel.
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Join FLexlaw to unlock all legal intelligenceLee was represented by the Public Defender of the Tenth Judicial Circuit on appeal. While represented, Lee filed a pro se notice of pending motion to …
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John A. Lee, while represented by the Public Defender of the Tenth Judicial Circuit, filed in this court a pro se notice of pending motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We solicited a response from appellate counsel, who indicated that the record was incomplete, and that he was therefore unable to respond properly to the motion or to address the propriety of the accompanying rule 3.800(b) motion that Lee had filed in the trial court. In addition, counsel pointed out that because only a fragment of the record had been prepared, he would be unable, after the resolution of the rule 3.800(b) motion, to file the initial brief within ten days of transmission of the supplemental record as contemplated by the rule. The recent amendment to rule 3.800 1 provides an avenue for the correction of sentences during the pendency of criminal appeals, and its province is confined to the individuals responsible for the prosecution or defense of the appeal, which customarily will be appellate counsel. Only in those relatively rare instances in which a criminal defendant elects to proceed without benefit of counsel on direct appeal may the pro se litigant avail himself or herself of this new mechanism to pursue the correction of sentences.2
By prior unpublished order, we struck the notice filed in this court and reconfirm the propriety of this action in this opinion. Our intention in the future is to strike future pro se notices of represented parties without requesting responses from appellate counsel because the status of the record, or the merit of the motion filed in the trial court, is not critical to our decision to prevent pro se litigants from usurping the responsibilities of counsel in this regard. Additionally, we note as well that the circuit court should strike Mr. Lee’s pro se rule 3.800(b)(2) motion as he enjoys the advantages of appointed counsel in his appeal. The striking of the notice in this court is, of course, without prejudice to appellate counsel’s ability to pursue appropriate remedies to correct sentencing errors during the pendency of this appeal once the record is complete.
Mr. Lee’s notice of pending motion to correct sentence is stricken.
PARKER, A.C.J., and ALTENBERND and WHATLEY, JJ., Concur. . See Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So. 2d 1015 (Fla.1999).
. Florida Rule of Criminal Procedure 3.800(b)(2) provides, in relevant part: "The motion may be filed by appellate counsel and must be served before the party's first brief is served.” We believe that while the rule's use of the permissive word "may” might be intended to allow for the cooperative filing of the motion and notice by trial counsel and appellate counsel, the supreme court never envisioned authorizing pro se filings in this instance when individuals are represented by counsel.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA 2005)…pro se motion was timely, the trial court, nevertheless, should have stricken it because Mr. Bizzell had counsel at the time. See Logan v. State, 846 So. 2d 472, 479 (Fla.2003); Coffelt v. State, 905 So. 2d 269, 270 (Fla. 2d DCA 2005); Lee v. State, 779 So. 2d 341, 342 n. 2 (Fla. 2d DCA 2000); Rodriguez v. State, 881 So. 2d 671, 673 (Fla. 5th DCA 2004). Compare Lopez v. State, 905 So. 2d 1045, 1047 (Fla. 2d DCA 2005) (exception for filing of pro se rule 3.800(b) motion after filing of appellate counsel’s init…
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Rodriguez v. State, 881 So. 2d 671 (Fla. 5th DCA 2004)…guez’s counsel filed an initial brief before Rodriguez filed his pro se motion, it was unauthorized. Second, the Rule 3.800(b) motion was a legal nullity because Rodriguez was represented by counsel at the time he filed the motion. In Lee v. State, 779 So. 2d 341 (Fla. 2d DCA 2000), the district court addressed the issue of a motion filed pro se by an appellant who is represented by counsel. The court stated: We believe that while the rule’s use of the permissive word “may” might be [*673] intended to allow…
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Coffelt v. State, 905 So. 2d 269 (Fla. 2d DCA 2005)…an Coffelt appeals the circuit court’s denial of his pro se motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). [*270] We reverse and remand for the circuit court, under the authority of Lee v. State, 779 So. 2d 341 (Fla. 2d DCA 2000), to strike the pro se motion as unauthorized since Coffelt at the time he filed the rule 3.800(b)(2) motion was and currently still is represented by appointed counsel in the pending direct appeal of the sentence being challenged…
Authorities Cited
- Amendments TO Fla. Rules OF Crim. Procedure 3.111(e) & 3.800 & Fla. Rules OF App. Procedure 9.020(h), 791 So. 2d 525 (Fla. 2001)