DARRELL D. BENJAMIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed.
ALTENBERND and NORTHCUTT, JJ., and CASE, JAMES R., Associate Senior Judge, Concur.
ORDER STRIKING PRO SE MOTION FOR REHEARING OR CLARIFICATION
Darrell Benjamin filed a pro se motion for rehearing or clarification in this case. This court affirmed the order revoking his probation and the resulting sentence in a decision that issued on December 30, 2009. This motion is timely.
*132At all relevant times during the pen-dency of this appeal, Mr. Benjamin has been represented by an experienced appellate attorney. This attorney filed a brief presenting an issue on the merits. This attorney has obviously declined to file a motion for rehearing. Thus, the issue now is whether Mr. Benjamin is authorized to file a pro se motion for rehearing in an appeal where he has legal representation.
In the past, this court has accepted and ruled on motions comparable to Mr. Benjamin’s motion. This policy has not been express and probably has not been followed in every case. This policy was established prior to the supreme court’s decision in Johnson v. State, 974 So.2d 363 (Fla.2008). In Johnson, the supreme court announced a broad rule prohibiting pro se filings of this sort. Id. at 364-65.
This court, sitting in full conference of its active members, concluded in December 2009 that it is inappropriate for this court to have a policy permitting pro se filings in conflict with the policy of the supreme court. We voted to discontinue accepting such filings. Accordingly, this panel publishes this order to give notice that we will no longer accept such filings and will strike such pro se motions as unauthorized in all cases in which the defendant is represented by counsel who has filed a brief on the merits. This court will continue to accept pro se motions for rehearing in cases where counsel has filed an Anders brief.
Accordingly, Mr. Benjamin’s motion is stricken as unauthorized.
NORTHCUTT, J., and CASE, JAMES R., Associate Senior Judge, Concur.
ALTENBERND, Judge.
Darrell Benjamin filed a pro se motion for rehearing or clarification in this case. This court affirmed the order revoking his probation and the resulting sentence in a decision that issued on December 30, 2009. This motion is timely. At all relevant times during the pendency of this appeal, Mr. Benjamin has been represented by an experienced appellate attorney. This attorney filed a brief presenting an issue on the merits. This attorney has obviously declined to file a motion for rehearing. Thus, the issue now is whether Mr. Benjamin is authorized to file a pro se motion for rehearing in an appeal where he has legal representation.
In the past, this court has accepted and ruled on motions comparable to Mr. Benjamin’s motion. This policy has not been express and probably has not been followed in every case. This policy was established prior to the supreme court’s decision in Johnson v. State, 974 So. 2d 363 (Fla.2008). In Johnson, the supreme court announced a broad rule prohibiting pro se filings of this sort. Id. at 364-65.
This court, sitting in full conference of its active members, concluded in December 2009 that it is inappropriate for this court to have a policy permitting pro se filings in conflict with the policy of the supreme court. We voted to discontinue accepting such filings. Accordingly, this panel publishes this order to give notice that we will no longer accept such filings and will strike such pro se motions as unauthorized in all cases in which the defendant is represented by counsel who has filed a brief on the merits. This court will continue to accept pro se motions for rehearing in cases where counsel has filed an Anders brief.
Accordingly, Mr. Benjamin’s motion is stricken as unauthorized.
NORTHCUTT, J., and CASE, JAMES R., Associate Senior Judge, Concur.
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Ortiz v. State, 98 So. 3d 70 (Fla. 2d DCA 2010)…rtiz filed a pro se motion for rehearing. At all relevant times during the pendency of this appeal, Ortiz has been represented by counsel. Accordingly, his pro se motion was stricken by this court in accordance with our opinion in Benjamin v. State, 32 So. 3d 131 (Fla. 2d DCA 2009). Subsequent to the filing of his motion for rehearing, Ortiz wrote to the chief judge of this court requesting that this court review (and presumably recede from) Benjamin. Ortiz’s letter will be treated as a motion for reconsid…
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Perez v. Sec'y, Dep't of Corr. (M.D. Fla. 2024)…015¹. (Docs. 39 at 2 and 46 at 1) Consequently, the untimely motion did not toll the time to seek review in the United States Supreme Court. Also, the state appellate court struck the motion for rehearing (Doc. 44-2 at 14), citing Benjamin v. State, 32 So. 3d 131, 132 (Fla. 2d DCA 2009), which requires “strik[ing] [ ] pro se motions [for rehearing] as unauthorized in all cases in which the defendant is represented by counsel who has filed a brief on the merits.” Because appellate counsel filed a brief for Pe…
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Harris v. Sec'y, Dep't of Corr. (Pinellas County) (M.D. Fla. 2021)…r the state appellate court issued the decision, Harris filed a pro se motion titled “Motion to Vacatur” and for the first time cited federal authorities. (Doc. 64-5 at 53–54) The state appellate court struck the motion and cited Benjamin v. State, 32 So. 3d 131 (Fla. 2d DCA 2009), which holds that a pro se motion for rehearing is unauthorized if an attorney represents the pro se movant. Even if the untimely and unauthorized pro se motion alerted the state court to the federal nature of Harris’s claim, the…
Authorities Cited
- Johnson v. State, 974 So. 2d 363 (Fla. 2008)