TERRILL PAIGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to correct sentencing error under rule 3.800(b)(2) is foreclosed once an initial brief has been filed.
The Public Defender filed an initial brief appealing a judgment and sentence. Before the State filed its answer brief, the Public Defender moved to wi…
The full statement of facts, procedural history, and disposition for this case are member content.
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ON APPELLANT’S MOTION TO WITHDRAW INITIAL BRIEF
PER CURIAM.
The Public Defender has filed an initial brief in this appeal from judgment and sentence imposed upon Terrill Paige. According to appellant’s brief, the trial court erred in denying a motion to suppress certain evidence.
Before the filing of the answer brief, the Public Defender moved this court to allow withdrawal of the initial brief so that a motion to correct sentencing error could be filed in the trial court in accordance with Florida Rule of Criminal Procedure 3.800(b)(2). The State of Florida has filed an objection to the granting of this motion.
The state argues that such a motion is to be served prior to service of the party’s first brief by the plain terms of rule 3.800(b)(2). Here, appellant has filed and served an initial brief and, accordingly, the rule 3.800(b)(2) remedy is foreclosed. The rule makes no provision for withdrawal of 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 in Proctor v. State, 901 So. 2d 994 (Fla. 1st DCA 2005), is inapplicable where, as here, a brief arguing for reversal has been filed by appellant. We therefore distinguish Proctor on that basis and limit the holding to its facts, where counsel has filed an Anders brief and the pro se appellant seeks to file a motion to correct sentencing error prior to the filing of his or her own brief.
Appellant’s motion to withdraw the initial brief is accordingly denied.
MOTION DENIED.
BARFIELD, DAVIS and HAWKES, JJ., concur.
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Wilman Ramon Collando-Pena v. State, 141 So. 3d 229 (Fla. 1st DCA 2014)…2d 994, 995 (Fla. 1st DCA 2005). Accordingly, an appellant is permitted to file a motion to correct sentencing error in the trial court after the Anders brief is served but before the appellant’s pro se brief is served. See id.; cf. Paige v. State, 921 So. 2d 9 (Fla. 1st DCA 2005) (on appellant’s motion to withdraw initial brief) (concluding, in a non-Anders direct appeal, that the filing/service of the initial brief foreclosed defendant’s right to pursue a rule 3.800(b)(2) remedy to correct sentencing err…
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Hale v. McNEIL, 988 So. 2d 1123 (Fla. 1st DCA 2008)…petition for all writs in this Court following the voluntary dismissal of his initial appeal. Since the petition is not included in the record, it is impossible to know what arguments it contained. This Court denied the petition. See Hale v. Crosby, 921 So. 2d 9 (Fla. 1st DCA 2005).…
Authorities Cited
- Proctor v. State, 901 So. 2d 994 (Fla. 1st DCA 2005)
- Hill v. State, 890 So. 2d 368 (Fla. 4th DCA 2004)