NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

ANDREW WISNIEWSKI, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-995 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed October 14, 2015. 

Appeal from the Circuit Court for 

Manatee County; Edward Nicholas, 

Judge. 

Howard L. Dimmig, II, Public Defender, 

and Starr L. Brookins, Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Donna S. Koch, 

Assistant Attorney General, Tampa, for 

Appellee. 

BLACK, Judge. 

 This appeal was originally filed pursuant to Anders v. California, 386 U.S. 

738 (1967). However, upon our review of the record it was apparent that whether the 

trial court erred in striking Andrew Wisniewski's pro se motion to withdraw plea was an 
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issue arguable on its merits. As such, we ordered merits-based briefing. See Chapman 

v. State, 40 Fla. L. Weekly D1597 (Fla. 2d DCA July 10, 2015) (striking Anders briefing 

and requiring merits briefing). 

 Because the trial court's order struck Wisniewski's motion as a nullity 

based on Wisniewski having counsel, the parties were directed to address whether 

striking the motion was appropriate in light of Sheppard v. State, 17 So. 3d 275 (Fla. 

2009). In response to this court's order, the initial brief included citation only to 

Sheppard with no substantive discussion otherwise. The State's answer brief did not 

address whether the court applied the correct law in striking the motion as a nullity but 

instead focused on the ultimate issue of whether the motion sufficiently alleged facts 

supporting coercion. Neither brief is particularly helpful. 

 The trial court's order cites Logan v. State, 846 So. 2d 472 (Fla. 2003), 

and specifically states: "Regardless of the Defendant's contentions raised in his present 

Motion, Florida courts have consistently held that pro se pleadings filed by defendants 

who have representation are a 'nullity having no legal force or effect.' " (Emphasis 

added.) The order also states that whether Wisniewski intended to file his motion to 

withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(l) or 3.850, his 

motion would be stricken as a nullity. Thus it is clear that the court's ruling was not 

based on the allegations in the motion but solely on the fact that Wisniewski was 

represented by counsel. The court failed to consider whether Wisniewski's motion 

contained allegations sufficient under Sheppard to warrant consideration on the merits. 

See Sheppard, 17 So. 3d at 277 ("[A] limited exception to the rule of striking pro se 

pleadings as nullities exists where a defendant files a pro se motion to withdraw a plea 
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pursuant to rule 3.170(l ), which contains specific allegations that give rise to an 

adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion 

that led to the entry of the plea. In these narrow circumstances, . . . the trial court is 

required . . . to determine whether an adversarial relationship exists such that defense 

counsel can no longer continue to represent his or her client at a hearing in which 

counsel will likely be an adverse witness."). 

 Accordingly, we reverse and remand for the trial court to consider whether 

Wisniewski's motion sufficiently alleged an adversarial relationship. See Peterson v. 

State, 881 So. 2d 1129 (Fla. 4th DCA 2004) ("Therefore, without reaching the merits, 

we reverse and remand for further consideration by the trial court."), approved of by 

Sheppard, 17 So. 3d at 277; see also Gonzalez v. State, 21 So. 3d 169, 170 (Fla. 2d 

DCA 2009) ("[W]e reverse and remand with directions to reconsider the motion to 

withdraw plea based on the procedure outlined in Sheppard."); Escobar v. State, 126 

So. 3d 277, 281 (Fla. 3d DCA 2011) (reversing and remanding where "[t]he trial court 

erred by not considering first whether this (or any other) allegation was sufficient to 

constitute" an adversarial relationship between Escobar and his attorney); Bruce v. 

State, 38 So. 3d 869, 870 (Fla. 3d DCA 2010) (reversing and remanding for 

consideration under Sheppard where "[t]he trial court denied both motions on the 

ground that each was a nullity" and advised Bruce that he could not file his own motions 

because he had an attorney). Should the motion be denied on its merits, the trial court 

shall reinstate Wisniewski's judgment and sentence. 

 Reversed and remanded with instructions. 
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CASANUEVA and KHOUZAM, JJ., concur.