                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

DAVID E. ZIPPERER,                    NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-4101

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed October 12, 2015.

An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      David Zipperer appeals an order dismissing his timely pro se motion to

withdraw his plea after admitting to violating his probation and being sentenced for

the underlying crimes. The motion, filed before defense counsel filed the notice of

appeal from the judgment and sentence, alleged as grounds only that
             The plea was entered without a full understanding of
             options that should have been presented to him by his trial
             counsel. Also, undersigned was unaware that he could
             present witnesses on his behalf prior to sentencing.

The lower court dismissed Zipperer’s motion as unauthorized because he was

represented by counsel. See Johnson v. State, 974 So. 2d 363, 364-65 (Fla. 2008)

(citing Logan v. State, 846 So. 2d 472, 473 (Fla. 2003) (stating that criminal

defendants do not have the constitutional right to simultaneously be represented by

counsel and represent themselves)).

      In Sheppard v. State, 17 So. 3d 275 (Fla. 2009), the supreme court held that

when a represented defendant files a pro se post-sentencing motion to withdraw a

plea, the trial court should not strike the motion as a nullity if it contains allegations

that give rise to an adversarial relationship (e.g., misadvice, misrepresentations or

coercion by counsel). Id. at 287. The court should, instead, “hold a limited hearing”

to determine whether “an adversarial relationship between counsel and the defendant

has arisen and the defendant’s allegations are not conclusively refuted by the

record[.]” Id.

      We conclude the general ineffectiveness allegation in Zipperer’s motion, that

there were “options that should have been presented to him by his trial counsel,” was

insufficient to show misadvice, misrepresentation or coercion by counsel such that

a Sheppard hearing was required. See Echeverria v. State, 33 So. 3d 802, 804 (Fla.

1st DCA 2010) (holding allegations that trial counsel was ineffective in advising
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defendant whether to go to trial and whether to accept a certain sentence were

“broad, general allegations of ineffectiveness” that did not “indicate misadvice,

coercion, or misrepresentation that would require a hearing under Sheppard.”). In

any event, the transcript of the plea colloquy and the plea form Zipperer signed refute

his allegation that there were “options” he believes counsel failed to tell him about.

And if the allegation that Zipperer did not know he could present witnesses at the

sentencing hearing arguably suggests an adversarial relationship, it too is refuted by

the record which reflects that trial counsel indeed called Zipperer’s mother and aunt

to testify on his behalf. Consequently, even if the trial court had erred by dismissing

the motion, the error would be harmless. See Echeverria, 33 So. 3d at 804 (citing

Smith v. State, 21 So. 3d 72, 76 (Fla. 1st DCA 2009), and Johnson v. State, 22 So.

3d 840, 844 (Fla. 1st DCA 2009)).

      AFFIRMED.



MARSTILLER, RAY, and SWANSON, JJ., CONCUR.




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