Christiansen v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHN CHRISTIANSEN,
)
)
Appellant,
)
)
v.
)
)
STATE OF FLORIDA,
)
)
Appellee.
)
___________________________________ )
Case No. 2D08-48
Opinion filed October 29, 2008.
Appeal from the Circuit Court for Sarasota
County; Charles E. Roberts, Judge.
James Marion Moorman, Public Defender,
and Kevin Briggs, Assistant Public
Defender, Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and William I. Munsey, Jr.,
Assistant Attorney General, Tampa, for
Appellee.
SILBERMAN, Judge.
John Christiansen challenges his judgment and sentence for felony
battery after prior conviction and contends that the trial court erred in denying his motion
to withdraw plea after sentencing. We affirm the judgment and sentence, reverse the
denial of the motion, and remand for the trial court to strike the pro se motion as a
nullity.
Christiansen entered an open plea to the charge of felony battery after
prior conviction. Pursuant to the negotiated agreement, the State entered a nolle
prosequi on two other charges. After sentencing, pursuant to Florida Rule of Criminal
Procedure 3.170(l), Christiansen filed a pro se motion to withdraw his plea. The motion
alleged that the plea was involuntary and that counsel was ineffective and coerced him
into entering the plea, but the motion did not request to discharge counsel. The trial
court denied the motion on the merits without a hearing.
Christiansen contends that the trial court should have appointed conflictfree counsel and held an evidentiary hearing on his motion to withdraw plea. We
disagree because Christiansen filed the motion pro se while he was still represented by
counsel. The pro se motion to withdraw plea expressed dissatisfaction with counsel but
did not contain an unequivocal request to discharge counsel; thus, the trial court should
have stricken the motion as a nullity. See Sheppard v. State, 988 So. 2d 74, 79 (Fla. 2d
DCA July 16, 2008) (certifying conflict with Bermudez v. State, 901 So. 2d 981 (Fla. 4th
DCA 2005), and Peterson v. State, 881 So. 2d 1129 (Fla. 4th DCA 2004)), review
granted, No. SC08-1452, 2008 WL 4551389 (Fla. Sept. 29, 2008) (table); Mourra v.
State, 884 So. 2d 316, 321 (Fla. 2d DCA 2004); see also McClelland v. State, 33 Fla. L.
Weekly D2123, D2123 (Fla. 2d DCA Sept. 5, 2008) (citing Sheppard and Mourra).
Thus, we affirm the judgment and sentence, reverse the denial of the pro se motion to
withdraw plea, and remand for the trial court to strike the pro se motion. As we did in
Sheppard, we certify conflict with Bermudez and Peterson.
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Affirmed in part, reversed in part, and remanded.
CASANUEVA and STRINGER, JJ., Concur.
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