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Proctor v. State5/12/2005
ility to file a pro se initial brief to the extent that sentencing errors are raised therein. In the case where appellate counsel filed an Anders brief but appellant wished to raise sentencing errors in his pro se brief that were not otherwise properly preserved for appeal, the outlet created by the Florida Supreme Court for preserving sentencing errors in rule 3.800(b) is no longer available.
Therefore, counsel's Anders brief should not be construed as the "party's first brief." To hold otherwise would prevent a pro se appellant from preserving alleged sentencing errors that had been missed by appointed counsel. In addition, allowing a pro se appellant to file a rule 3.800(b)(2) motion even in the face of an Anders brief would promote judicial efficiency by negating the necessity of appellant's filing a post-conviction motion addressing the same issue.
The Fifth District Court of Appeal has held to the contrary. In Rodriguez v. State, 881 So. 2d 671 (Fla. 5th DCA 2004), the Fifth District held that a pro se appellant may not file a rule 3.800(b)(2) motion to correct a sentencing error after the filing of an Anders brief. The court determined that rule 3.800(b)(2) only authorized this motion to be filed before the filing of the party's first brief, which was Rodriguez's counsel's initial brief. Id. at 672. The Fifth District further held that the pro se rule 3.800(b)(2) motion was an unauthorized filing because he was still represented by counsel at the time of its filing. Cf. Lee v. State, 779 So. 2d at 341 (Fla. 2d DCA 2000) (adopting the policy of striking pro se notices of pending motions to correct sentencing error when pro se appellants are represented by appointed counsel). Accordingly, as we determine that the Fifth District's decision elevates the language of the rule over the procedure required by Anders, we certify that our decision in the instant case conflicts with Rodriguez . To accept the view that the pro se filing of a rule 3.800(b) motion after the filing of an Anders brief by one's counsel renders the pro se filing unauthorized would eviscerate the spirit of Anders. The indigent litigant's right to raise his own points on appeal would become simply illusory if he was barred from filing a motion to properly preserve the issues on appeal raised within that pro se brief.
MOTION GRANTED; CONFLICT CERTIFIED.
ERVIN, BROWNING and LEWIS, JJ., concur.
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