CHARLES SIMMONS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A represented defendant's pro se motion to withdraw a plea, alleging coercion by counsel, should not be dismissed as a nullity without a hearing, even if the defendant does not explicitly state a desire to discharge counsel.
[1] A represented defendant's pro se motion to withdraw a plea, alleging coercion by counsel, should not be dismissed as a nullity without a hearing, even if the defendant do…
[2] When a defendant's allegations of an adversarial relationship with counsel are not conclusively refuted by the record, the trial court should either permit counsel to wit…
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Join FLexlaw to unlock all legal intelligenceCharles Simmons, Jr., represented by counsel, filed a pro se motion to withdraw his plea, alleging his attorney coerced him. The trial court dismissed…
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Charles Simmons, Jr., on probation for various felonies and misdemeanors resulting from a severe cocaine addiction, admitted violating that probation by committing new drug-related crimes. After the court sentenced him on the underlying convictions and the newly admitted charges, he filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(0, claiming his counsel had coerced him into pleading. The circuit court dismissed the motion as a nullity based on Grainger v. State, 906 So.2d 380 (Fla. 2d DCA 2005), because he was represented by counsel at the time he filed the motion, his counsel did not adopt the motion, and the motion did not state that he requested to discharge his counsel. On appeal, he raises as error the trial court’s dismissal of this motion. He also claims that the circuit court erred in imposing $150 for costs of prosecution when the State did not seek or document those costs. We reverse.
In Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), a case factually similar to Mr. Simmons’s, this court followed Grainger and adhered to the view that unless the defendant unequivocally states his desire to discharge counsel, the motion to withdraw the plea should be dismissed as a nullity. 988 So.2d at 76. In Sheppard, we also certified conflict with the Fourth District’s more expansive view in allowing a hearing on the merits of such a motion, as expressed in Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004), and Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005). Sheppard, 988 So.2d at 79.
Like the circuit court in Sheppard, in Mr. Simmons’s case the circuit court properly followed the district precedent of Grainger. While Mr. Simmons’s case was on appeal, the Florida Supreme Court quashed our opinion in Sheppard in Sheppard v. State, 17 So.3d 275, 287 (Fla.2009) (quashing the Second District’s decision in Sheppard and approving the decisions of the Fourth District in Peterson and Ber-mudez ). It specifically held:
In light of these conclusions, we outline the procedure trial courts should follow when a represented defendant files a pro se rule 3.170(i) motion based on allegations giving rise to an adversarial relationship such as counsel’s mis-advice, misrepresentation, or coercion that led to the entry of the plea. In these narrow circumstances, the trial court should not strike the pleading as a nullity even though the defendant did not also specifically include the phrase, “I request to discharge my counsel.” Rather, the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are pres*638ent. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.
Sheppard, 17 So.3d at 286-87 (footnote omitted). Based on this recent supreme court pronouncement, we must reverse the dismissal of Mr. Simmons’s motion as a nullity and remand for the circuit court to consider his motion to withdraw based on the procedures outlined in Sheppard.
We must also reverse, in part, the imposition of $150 for costs of prosecution. Section 938.27(8), Florida Statutes (2008),1 provides:
Costs for the state attorney shall be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged, including a proceeding in which the underlying offense is a violation of probation or community control. The court may set a higher amount upon a showing of sufficient proof of higher costs incurred.
The State concedes that the circuit court erred in imposing the $50 amount over the mandatory $100 without requiring the State to provide documentation of the additional amount. Such additional amount may be reimposed if the State complies with the procedural requirements of the statute. See Munoz v. State, 884 So.2d 1070, 1070 (Fla. 5th DCA 2004) (“Such costs may be reimposed if the state can produce the required documentation at a noticed hearing.”).
Reversed and remanded for further proceedings in accordance with this opinion.
ALTENBERND and MORRIS, JJ., Concur.
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Collins v. State, 145 So. 3d 930 (Fla. 2d DCA 2014)…nse is charged.... The court may set a higher amount upon a showing of sufficient proof of higher costs incurred. The burden is on the State to substantiate the amount of costs incurred in excess of the mandatory statutory amount. Simmons v. State, 24 So. 3d 636, 638 (Fla. 2d DCA 2009). It was error for the trial court to impose the $400 amount over the mandatory $100 cost of prosecution without requiring the State to provide documentation for the additional amount. See id. at 638; Diaz v. State, 901 So. 2…
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Robinson v. State, 256 So. 3d 217 (Fla. 5th DCA 2018)…es and costs and the $50 application fee because documentation supporting a greater amount is not present in the record. See §§ 27.52(1)(b), 938.29(1)(a), Fla. Stat. (2015) ; Alexis v. State, 211 So. 3d 81, 83 (Fla. 4th DCA 2017) ; Simmons v. State, 24 So. 3d 636, 638 (Fla. 2d DCA 2009). We remand with instructions that public defender fees and costs be reduced to $100 and the $50 application fee or to hold a hearing with notice to obtain evidence from the public defender supporting the $300 public defender…
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Tarek Mneimne v. State, 396 So. 3d 50 (Fla. 5th DCA 2025)…rection of the $100 public defender application fee because it was imposed in excess of the statutory amount of $50 pursuant to section 27.52(1)(b), Florida Statutes. See Alexis v. State, 211 So. 3d 81, 83 (Fla. 4th DCA 2017); Simmons v. State, 24 So. 3d 636, 638 (Fla. 2d DCA 2009). On remand, the fee should be reduced to $50. See §27.52(1)(b), Fla. Stat.; Dortch v. State, 396 So. 3d 50 (Fla. 5th DCA 2024); Einsmann v. State, 293 So. 3d 634, 635 (Fla. 5th DCA 2020); Robinson v. State, 256 So. 3d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sheppard v. State, 17 So. 3d 275 (Fla. 2009)
- Bermudez v. State, 901 So. 2d 981 (Fla. 4th DCA 2005)
- Peterson v. State, 881 So. 2d 1129 (Fla. 4th DCA 2004)
- Sheppard v. State, 988 So. 2d 74 (Fla. 2d DCA 2008)
- Grainger v. State, 906 So. 2d 380 (Fla. 2d DCA 2005)
- Munoz v. State, 884 So. 2d 1070 (Fla. 5th DCA 2004)