# Third District Court of Appeal State of Florida
Opinion filed May 4, 2022

. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D21

- 2218 Lower Tribunal No. F17

- 2888

________________ 

### Keith Eric C hristian , Appellant,

vs. 

### The State of Florida , Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami

- Dade County, Robert T. Watson , Judge. Keith Eric Christian , in proper person

. Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before LIND SEY , HENDON and LOBREE, JJ. PER CURIAM

. Appellant, Keith Eric Christian , was convicted of two count s of2 attempted second degree murder with a deadly weapon / firearm, in violation of section s 782.04(2), 777.04 , and 775.087 , Florida Statutes (2017) , and sentenced to ten years of probation pursuant to his guilty plea on M arch 13, 2018

. In 2020, th e State filed an amended affidavit for violation of probation. Christian was represented for a time by private counsel, who was subsequently discharged, and the public defender was appointed. 1 On August 22 , 2021, Christian filed a motion to “ correct charge and sentence” pursuant to Florida Rule of Criminal Procedure 3.8 50

. In his motion, Christian challenges his convictions and sentence on the grounds that the State improperly modified his charges from aggravated assault to attempted murder, as he had a valid concealed weapons permit and the right to carry his firearm , and he acted in self

- defense without depraved mind or disregard for human life. 2 T he trial court summarily denied the motion as it was not adopted by Christ ian’s counsel

. Th is appeal ensued. On appeal, the State acknowledges that it is unclear whether the trial

1 The record reflects that counsel was appointed to represent Christian for the probation violation proceeding but is silent as to whether counsel was also appointed for the postconviction motion.
2 Based on the charges at the time of his a rrest rather than his conviction, Christian also contends that aggravated assault cannot be attempted nor reclassified due to the use of a firearm as it is an essential element of the charge.3 court correctly denied the motion on the basis that it was not adopted by Christian’s counsel

. See Baker v. State , 210 So. 3d 140, 141 (Fla. 2d DCA
2 016) (recognizing that although defendant represented by counsel does not have right to file pro se motions , “ this prohibition only extends to the proceedings in which counsel represents the defendant ” ). Nonetheless, the State urges a “tipsy coachman” aff irmance on the basis that the motion was untimely filed after the two

- year period provided by rule 3.850(b)

. See Jacobson v. State , 238 So. 3d 865, 867 (Fla. 2d DCA 2018) (applying tipsy coachman doctrine to find that trial court should have denied 3.850 motion as untimely); Miller v. State , 829 So. 2d 321 , 322 (Fla. 5th DCA 2002) (same)

. Finding that Christian has failed to demonst rate manifest injustice or any grounds to excuse his procedural default , we affirm. See McGee v. State , 327 So. 3d 382, 383 (Fla. 3d DCA 2021), review denied , No. SC21

- 1506, 2022 WL 122323 (Fla. Jan. 13, 2022). Affirmed.