ERIC HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot withdraw their initial brief to file a motion to correct a sentencing error if that motion is not filed before the first brief is served.
The defendant filed a brief, and the State responded. The court issued an opinion in a related case, Washington v. State. The defendant then moved to …
The full statement of facts, procedural history, and disposition for this case are member content.
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ON THE STATE’S MOTION FOR REHEARING ON DEFENDANT’S MOTION TO WITHDRAW BRIEF
PER CURIAM.
This matter is before the court on the State’s emergency motion for rehearing and rehearing en banc. We grant the motion for rehearing and issue the following.
The defendant filed its initial brief on May 21, 2004. The State filed its answer brief on July 14, 2004. On September 1, 2004, this court issued its opinion in Washington v. State, 29 Fla. L. Weekly D2011 (Fla. 4th DCA Sept.l, 2004). In Washington, this court held that a blanket notice of intent to seek enhanced sentencing was tantamount to no notice at all. Id. A motion for rehearing is currently pending.
The defendant then moved to withdraw its initial brief so that it could file a motion to correct a sentencing error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We initially granted the motion on October 29, 2004. The State filed an emergency motion for rehearing.
Washington spawned the filing of numerous motions by defendants requesting to withdraw their initial briefs to pursue rule 3.800(b)(2) motions in the trial court to raise the sentencing issue. Rule 3.800(b)(2) requires defendants to serve such motions “before the party’s first brief is served.” Fla. R.Crim. P.3.800(b)(2). The State argues that allowing a defendant to withdraw its brief permits the defendant to circumvent the express time frames designated by the rule. We agree.
We therefore grant the emergency motion for rehearing, vacate our order of October 29, 2004, and deny the defendant’s motion to withdraw its initial brief. The appeal is to proceed.
SHAHOOD, TAYLOR and MAY, JJ., concur.
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Proctor v. State, 901 So. 2d 994 (Fla. 1st DCA 2005)…of the brief until. 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6). Several district courts of appeal have strictly construed this time limitation. See Hill v. State, 890 So. 2d 368 (Fla. 4th DCA 2004) (refusing to permit counsel to withdraw brief in favor of filing a rule 3.800(b)(2) motion); Lee v. State, 719 So. 2d 341 (Fla. 2d DCA 2000). However, strictly construing this rule regarding its time limitations in Anders cases…
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Terrill Paige v. State, 921 So. 2d 9 (Fla. 1st DCA 2005)…ccordingly, the rule 3.800(b)(2) remedy is foreclosed. The rule makes no provision for withdrawal of [*10] a party’s brief if a sentencing error is discovered after service of the brief. We agree with appellee and align ourselves with Hill v. State, 890 So. 2d 368 (Fla. 4th DCA 2004) in our interpretation of this rule. We are aware that this court recently reached a different conclusion where the Public Defender filed an Anders brief on behalf of the appellant. The rationale for that decision, as set forth i…
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Erester Markque Ashford v. State, 50 Fla. L. Weekly D332 (Fla. 5th DCA 2024)…case, “the rule 3.800(b)(2) remedy is foreclosed.” See Paige v. State, 921 So. 2d 9 (Fla. 1st DCA 2005). Striking Ashford’s initial brief as he requests would in effect “circumvent the express time frames designated by the rule.” See Hill v. State, 890 So. 2d 368, 369 (Fla. 4th DCA 2004). This we will not do. As a result, Ashford’s motion is denied. It is so ordered. MACIVER and PRATT, JJ., concur. * The State filed and served its answer brief on June 20, 2024. _____________________________ Not final unt…