              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
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




                                             -2-
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.




                                             -3-
CASANUEVA and KHOUZAM, JJ., concur.




                                  -4-
