DAVID E. ZIPPERER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2015-10-12
No. 1D14-4101
MARSTILLER, RAY, and SWANSON, JJ., concur.
177 So. 3d 665 Florida District Court of Appeal, First District (2015) Positive Treatment
Cited by 1 case

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Synopsis

David Zipperer appealed the dismissal of his pro se motion to withdraw his guilty plea on probation violation charges. The court affirmed the dismissal, holding that his general allegations of ineffective assistance of counsel were insufficient to require a hearing under Sheppard v. State, and that the record refuted his claims anyway.


Holding

The court held that general allegations of ineffective assistance of counsel, without specific allegations of misadvice, misrepresentation, or coercion, are insufficient to require a Sheppard hearing. Even if the trial court erred in dismissing the motion, any error would be harmless because the record refutes Zipperer's allegations.


Headnotes

[1] A represented defendant's pro se motion to withdraw a plea should not be dismissed as a nullity if it alleges misadvice, misrepresentation, or coercion by counsel, but in…

[2] A general allegation of ineffectiveness of counsel is insufficient to trigger a hearing on a motion to withdraw a plea when the defendant is represented by counsel.

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Key Quotes

“when a represented defendant files a pro se post-sentencing motion to withdraw a plea, the trial court should not strike the motion as a nullity if it contains allegations that give rise to an adversarial relationship (e.g., misadvice, misrepresentations or coercion by counsel)”

Establishes the Sheppard standard for when a trial court must hold a hearing on a represented defendant's pro se motion to withdraw a plea

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Facts & Procedural History

Zipperer admitted to violating his probation and was sentenced for the underlying crimes. He filed a pro se motion to withdraw his plea before his cou…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

David Zipperer appeals an order dismissing his timely pro se motion to withdraw his plea after admitting to violating his probation and being sentenced for the underlying crimes. The motion, filed before defense counsel filed the notice of appeal from the judgment and sentence, alleged as grounds only that

The plea was entered without a full understanding of options that should have been presented to him by his trial counsel. Also, undersigned was unaware that he could present witnesses on his behalf prior to sentencing.

The lower court dismissed Zipperer’s motion as unauthorized because he was represented by counsel. See Johnson v. State, 974 So.2d 368, 364-65 (Fla.2008) (citing Logan v. State, 846 So.2d 472, 473 (Fla. 2003) (stating that criminal defendants do not have the constitutional right to simultaneously be represented by counsel and represent themselves)).

In Sheppard v. State, 17 So.3d 275 (Fla. 2009), the supreme court held that when a represented defendant files a pro se post-sentencing motion to withdraw a plea, the trial court should not strike the motion as a nullity if it contains allegations that give rise to an adversarial relationship (e.g., misadvice, misrepresentations or coercion by counsel). Id. at 287. The court should, instead, “hold a limited hearing” to determine whether “an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are *666not conclusively .refuted by the record[.]” Id.

We conclude the general ineffectiveness allegation in Zipperer’s motion, that there were “options that should have been presented to him by his trial counsel,” was insufficient to show misadvice, misrepresentation or coercion by counsel such that a Sheppard hearing was required. See Echeverria v. State, 33 So.3d 802, 804 (Fla. 1st DCA 2010) (holding allegations that trial counsel was ineffective in advising defendant whether to go to trial and whether to accept a certain sentence were “broad, general allegations of ineffectiveness” that did not “indicate misadvice, coercion, or misrepresentation that would require a hearing under Sheppard.”). In any event, the transcript, of the plea colloquy and the plea form Zipperer signed refute his allegation that there were “options” he believes counsel failed to tell him about. And if the allegation that Zipperer did not know he could present witnesses at the sentencing hearing arguably suggests an adversarial relationship, it too is refuted by the record which reflects that trial counsel indeed called Zipperer’s mother and aunt to testify on his behalf. Consequently, even if the trial court had erred by dismissing the motion, the error would be harmless. See Echeverria, 33 So.3d at 804 (citing Smith v. State, 21 So.3d 72, 76 (Fla. 1st DCA 2009), and Johnson v. State, 22 So.3d 840, 844 (Fla. 1st DCA 2009)).

AFFIRMED.

MARSTILLER, RAY, and SWANSON, JJ., concur.


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Citator

Cited By

  • Howard v. State, 2017 WL 3495240 (Fla. 1st DCA 2019)
    …r the original cap of six years in prison” were “broad, general allegations of ineffectiveness of his counsel [that] do not indicate misadvice, coercion, or misrepresentation that would require a hearing under Sheppard”); see also Zipperer v. State, 177 So. 3d 665, 666 (Fla. 1st DCA 2015) (“We conclude the general ineffectiveness allegation in Zipperer’s motion, that there were ‘options that should have been presented to him by his trial counsel,’ was insufficient to show misadvice, misrepresentation or coerc…

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