ANDRES RIGUEIRO A/K/A ANDRES RIGUEIRO MUNOZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Andres Rigueiro petitioned for a writ of habeas corpus alleging ineffective assistance of appellate counsel. The court denied the petition, holding that Rigueiro's pro se motion for rehearing filed while represented by counsel was a nullity and therefore could not extend the two-year filing deadline for his habeas petition.
The court held that pro se filings by a party represented by counsel have no legal force or effect and cannot extend appellate deadlines. Because Rigueiro's pro se motion for rehearing was a nullity, the two-year time limit ran from the issuance of the mandate, not from the denial of the pro se motion, rendering the habeas petition untimely.
[1] A pro se filing by a party represented by counsel is a legal nullity and cannot be entertained on the merits unless adopted by counsel.
[2] A petition for writ of habeas corpus alleging ineffective assistance of appellate counsel is untimely if filed more than two years after the issuance of the appellate cou…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a pro se filing by a party represented by counsel "cannot be entertained on the merits" unless it is adopted by counsel.”
Establishes the foundational legal principle that pro se filings by represented parties are nullities and cannot extend deadlines or be considered by courts.
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Join FLexlaw to unlock all legal intelligenceRigueiro was convicted of four counts of sexual battery and sentenced to 40 years in prison. He was represented by defense counsel on direct appeal, w…
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The defendant petitions this court for a writ of habeas corpus, pursuant to Florida Rule of Appellate Procedure 9.140, alleging ineffective assistance of appellate counsel. For the reasons that follow, we deny the petition.
The defendant was convicted of four counts of sexual battery on a victim over 12 years of age and sentenced to 40 years in prison. 919 So.2d 688. He was represented by defense counsel on appeal. We affirmed without opinion on February 1, 2006, and issued our mandate on February 17, 2006. Two days prior to the issuance of our mandate, the defendant handed his pro se motion for rehearing and rehearing en banc to the correctional institution for mailing. We received the pro se motion on February 21, 2006, and denied the motion on March 21, 2006.1
On March 13, 2008, defense counsel filed a rule 3.850 motion in the trial court. One day later, he filed the current petition. Both were filed over two years after the issuance of the mandate, but within two *128years of this Court’s denial of the defendant’s motion for rehearing on direct appeal.
The trial court denied the rule 3.850 motion as untimely and we affirmed. Rigueiro v. State, 4D08-3154, 2008 LEXIS 20630 (Fla. 4th DCA Sept. 24, 2008).
In its response to the petition in this court, the State argued that the petition was untimely filed. In his reply, the defendant cites Robbins v. State, 992 So.2d 878 (Fla. 5th DCA 2008), which appears to reach a different conclusion under similar circumstances. There the court concluded it should have recalled its mandate before ruling on a prisoner’s motion for rehearing that had been timely delivered to prison officials before the mandate was issued. Id. at 879-80. However, the Robbins opinion does not address the well-established principle that pro se filings are a “nullity” when filed by a party that is represented by counsel.2 Logan v. State, 846 So.2d 472, 475-76 (Fla.2003) (a pro se filing by a party represented by counsel “cannot be entertained on the merits” unless it is adopted by counsel.).
We agree that, generally, a court should recall its mandate when it receives a timely filed motion for rehearing. However, that procedure is not applicable here, where the defendant’s pro se motion had “no legal force or effect” because he was represented by counsel. State v. Craven, 955 So.2d 1182, 1183 (Fla. 4th DCA 2007). Because the two-year time limit ran from the issuance of the mandate rather than the denial of the defendant’s pro se motion for rehearing, his petition must be dismissed as untimely.
Petition denied.
GROSS, C.J., and CIKLIN, JJ., concur.
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Schultz v. State, 289 So. 3d 921 (Fla. 4th DCA 2020)…rror. Initially, no motion for downward departure was before the trial court. The trial court properly struck appellant’s motion for downward departure because it was filed pro se while appellant was represented by counsel. See Rigueiro v. State, 23 So. 3d 127, 128 (Fla. 4th DCA 2009) (citation omitted) (stating that “pro se filings are a ‘nullity’ when filed by a party that is represented by counsel”). Although appellant argues that the trial court should have granted counsel leave to adopt the motion f…
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Perez v. Sec'y, Dep't of Corr. (M.D. Fla. 2024)…rule applies. Haag v. State, 591 So. 2d 614, 617 (Fla. 1992). 3 ---PAGE 3--- Case 8:17-cv-00311-MSS-UAM Document 48 Filed 04/26/24 Page 4 of 24 PageID 1866 appellate court treated his pro se motion for rehearing as a “nullity.” Riguiero v. State, 23 So. 3d 127, 128 (Fla. 4th DCA 2009) (“[P]ro se filings are a 'nullity' when filed by a party that is represented by counsel.”) (citing Logan v. State, 846 So. 2d 472, 475–76 (Fla. 2003)). Because the untimely and unauthorized motion for rehearing did not toll…
Authorities Cited
- Logan v. State, 846 So. 2d 472 (Fla. 2003)
- State v. Curt Craven, 955 So. 2d 1182 (Fla. 4th DCA 2007)
- Chirino v. State, 914 So. 2d 4 (Fla. 3d DCA 2005)
- Rigueiro v. State, 919 So. 2d 688 (Fla. 4th DCA 2006)
- State v. Kessler, 919 So. 2d 688 (Fla. 4th DCA 2006)
- Robbins v. State, 992 So. 2d 878 (Fla. 5th DCA 2008)