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Proctor v. State5/12/2005
Pursuant to a plea agreement, appellant was sentenced to 20 months in prison, followed by three years of probation, on charges of fleeing or attempting to elude, leaving the scene of an accident with personal injuries, and misdemeanor driving under the influence. Court-appointed appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), noting no reversible errors in the record. Thereafter, this court granted appellant an opportunity to file a pro se brief.
Prior to filing his pro se brief, appellant requests that this court relinquish jurisdiction to the lower tribunal to allow him to file a pro se rule 3.800(b) motion regarding several scrivener's errors in the judgment and sentence. In response, the state argues that appellant's remedy is by way of rule 3.800(b)(2) as opposed to a motion to relinquish jurisdiction. The state contends that, in any event, appellant is not entitled to file a rule 3.800(b)(2) motion at this point because such a motion may only be filed "before the party's first brief is served." As the Public Defender has already served an initial brief in this case, which was the "party's first brief," appellant may no longer file a rule 3.800(b)(2) motion.
We treat appellant's pro se motion for relinquishing jurisdiction as a motion for leave to file a rule 3.800(b)(2) motion and grant the motion. Florida Rule of Criminal Procedure 3.800(b)(2) provides that
If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).
Several district courts of appeal have strictly construed this time limitation. See Hill v. State, 890 So. 2d 368 (Fla. 4th DCA 2004) (refusing to permit counsel to withdraw brief in favor of filing a rule 3.800(b)(2) motion); Lee v. State, 779 So. 2d 341 (Fla. 2d DCA 2000).
However, strictly construing this rule regarding its time limitations in Anders cases presents a procedural quagmire. In Anders cases, counsel's brief merely states that counsel is unable to find meritorious arguments after a conscientious examination of the case and must request the appellate court to allow the indigent appellant to file a brief and continue the proceedings pro se. The United States Supreme Court in its Anders decision expressly provided for the indigent appellant to raise any points on appeal that he wished in a separate pro se brief. 386 U.S. at 744. The Supreme Court clearly intended to allow the indigent appellant to continue with the proceedings pro se and any pro se points raised on appeal would supplement the exhaustive review done by the appellate court to the extent they were properly preserved. Id.
In the instant case, appellant seeks to correct three errors in the written judgment. A review of the record reveals that these errors are indeed scrivener's errors. However, this court would not be able to address the errors because, absent the trial court's ruling on a rule 3.800(b)(2) motion, these errors were not preserved. See Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003).
To construe the filing of a rule 3.800(b)(2) motion after the filing of counsel's Anders brief as unauthorized under the rule itself, because it was not filed before the filing of the party's first brief, renders meaningless appellant's ab
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