XAVIER TREMAIN JOHNSON A/K/A ZAY JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Xavier Johnson appeals his guilty plea convictions in three cases, raising the single issue that the trial court should have appointed conflict-free counsel to represent him on his pro se motion to withdraw his plea. The court affirms the judgments and sentences but reverses and remands for the trial court to strike the pro se motion as a nullity because Johnson was represented by counsel at the time and his motion did not include an unequivocal request to discharge counsel.
The trial court should have treated Johnson's pro se motion as a nullity because Johnson was represented by counsel and the motion did not include an unequivocal request to discharge counsel. Allegations of misadvice without a motion to discharge trial counsel are insufficient to justify a pro se pleading. The court affirms the judgments and sentences but reverses to require the trial court to strike the pro se motion.
[1] A pro se motion filed by a represented defendant should be treated as a nullity unless it includes an unequivocal request to discharge counsel.
[2] Allegations of attorney misadvice, without a motion to discharge trial counsel, are insufficient to justify a pro se pleading that could have unintended preclusive effect…
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Join FLexlaw to unlock all legal intelligence“Because Johnson was represented by counsel, the trial court should have treated Johnson's motion as a nullity unless it included some unequivocal request to discharge counsel.”
Establishes the legal standard that pro se motions by represented defendants must seek to discharge counsel to be valid.
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Join FLexlaw to unlock all legal intelligenceJohnson was represented by counsel when he filed a pro se 'Motion to Withdraw Plea and Demand for Speedy Trial' on May 26, 2005. In the motion, Johnso…
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VILLANTI, Judge.
Xavier Johnson appeals his judgments and sentences for multiple offenses in three cases, entered after he pleaded guilty. Johnson raises only one issue on appeal' — that the trial court should have appointed conflict-free counsel to represent him on his pro se motion to withdraw his plea. We affirm Johnson’s judgments and sentences but reverse and remand for the trial court to strike Johnson’s pro se motion.
Johnson filed his pro se “Motion to Withdraw Plea and Demand for Speedy Trial” on May 26, 2005. At the time, he was represented by counsel. The trial court orally denied the motion. Because Johnson was represented by counsel, the trial court should have treated Johnson’s motion as a nullity unless it included some unequivocal request to discharge counsel. See Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004). Johnson’s motion states, “My attorney Sheri Murphy led me to believe and/or encouraged my misapprehension of the nonbinding character of the plea agreements sentencing recommendation; resulting in my erroneous belief that the sentencing recommendation was a binding agreement pursuant to Florida Statute Criminal Procedure Rule 3.170(i).” In Mourra, this court stated, “We are not inclined to believe that an allegation of misadvice without a motion to discharge trial counsel is sufficient to justify a pro se pleading that might have unintended pre-clusive effect on postconviction proceedings.” Id. at 321 n. 5. Like the motion in Mourra, Johnson’s motion indicated some dissatisfaction with his attorney, but it did not seek to discharge her. Therefore, Johnson’s motion should have been treated as a nullity. See id. Accordingly, we reverse the trial court’s denial of Johnson’s pro se motion to withdraw his plea and remand with directions to strike the pro se motion.
Affirmed in part, reversed in part, and remanded to strike pro se motion to withdraw plea.
SILBERMAN and KELLY, JJ., Concur.
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Sheppard v. State, 17 So. 3d 275 (Fla. 2009)…ion to withdraw plea filed by a criminal defendant who is represented by counsel is a nullity, unless the defendant makes an unequivocal request to discharge counsel.” King v. State, 939 So. 2d 1196, 1196 (Fla. 2d DCA 2006) (citing Johnson v. State, 932 So. 2d 1169, 1170 (Fla. 2d DCA 2006), Grainger v. State, 906 So. 2d 380, 382 (Fla. 2d DCA 2005), and Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004)). Alternatively, courh-ap-pointed counsel could have adopted the pro se motion and then proceeded to rep…1 / 2
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Sheppard v. State, 988 So. 2d 74 (Fla. 2d DCA 2008)…ion to withdraw plea filed by a criminal defendant who is represented by counsel is a nullity, unless the defendant makes an unequivocal request to discharge counsel.” King v. State, 939 So. 2d 1196, 1196 (Fla. 2d DCA 2006) (citing Johnson v. State, 932 So. 2d 1169, 1170 (Fla. 2d DCA 2006), Grainger v. State, 906 So. 2d 380, 382 (Fla. 2d DCA 2005), and Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004)). Alternatively, court-appointed counsel could have adopted the pro se motion and then proceeded to repr…1 / 2
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King v. State, 939 So. 2d 1196 (Fla. 2d DCA 2006)…se motion to withdraw his plea in each case. A rule 3.170(l) motion to withdraw plea filed by a criminal defendant who is represented by counsel is a nullity, unless the defendant makes an unequivocal request to discharge counsel. Johnson v. State, 932 So. 2d 1169, 1170 (Fla. 2d DCA 2006); Grainger v. State, 906 So. 2d 380, 382 (Fla. 2d DCA 2005); Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004). King made no request to discharge his counsel, and nothing in the record reflects that counsel had been dis…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennie Frank Smith v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)
- Kasim McDONALD v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)