NOT FINAL UNTIL TIME EXPI RES 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.

A ppeal 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, A ssistant Attorney General, Tampa, for A ppellee.

BLACK, Judge. This appeal was originally filed pursuant to Anders v. Califo rnia, 386 U.S. 738 (1967). However, upon our review of the record it was appa rent that whether the trial court erred in striking A ndrew Wisniewski's pro se motion to withdraw plea was an- 2 - 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 t o address whether striking the motion was appropriate in light of Sheppard v. Sta te, 17 So. 3d 275 (Fla. 2009). In response to this court's order, the initial brief in cluded 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 t he motion as a nullity but

instead focused on the ultimate issue of whether the motion suf ficiently 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 content ions raised in his present Motion, Florida courts have consistently held that pro se plead ings filed by defendants who have representation are a 'nullity having no legal force or effect.' " (Emphasis added.) The order also states tha t 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 nul lity. Thus it is clear that t he court's ruling was not based on the allegations in the motion but solely on the fact t hat Wisniewski was represented by counsel. The court failed to consider whether W isniewski's motion contained allegations sufficient under Sheppard to warrant cons ideration on the merits. See Sheppard, 17 So. 3d at 277 ("[A] limited exception to the r ule of striking pro se pleadings as nullities exists w here a defendant files a pro se motion to withdraw a plea- 3 - pursuant to rule 3.170( l ), which contains specific all egations that give rise to an adversarial relationship, such as misadvice, affirmative misrep resentations, or coercion that led to the entry of the plea. In these narrow circumstanc es, . . . 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 a t a hearing in which counsel will likely be an adverse witness."). Accordingly, we reverse and remand for the trial court to con sider whether Wisniewski's motion sufficiently alleged an adversarial relatio nship. 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 co urt."), 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 reconsid er 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 whe re "[t]he trial court erred by not considering first whether this (or any other) alle gation 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 rem anding for consideration under Sheppard where "[t]he trial court denied bo th 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 it s merits, the trial court shall reinstate Wisniewski's judgment and sentence.

Reversed and remanded with instructions.- 4 - CASANUEVA and KHOUZAM, JJ., concur.