Summary
refusing to permit counsel to withdraw brief in favor of filing a rule 3.800(b) motion
Summary of this case from Proctor v. StateOpinion
No. 4D03-3215.
December 22, 2004. Rehearing Denied January 28, 2005.
Appeal from the Circuit Court, Seventeenth Judicial Circuit, Broward County, Ana Gardiner, J.
Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
ON THE STATE'S MOTION FOR REHEARING ON DEFENDANT'S MOTION TO WITHDRAW BRIEF
This matter is before the court on the State's emergency motion for rehearing and rehearing en banc. We grant the motion for rehearing and issue the following.
The defendant filed its initial brief on May 21, 2004. The State filed its answer brief on July 14, 2004. On September 1, 2004, this court issued its opinion in Washington v. State, 29 Fla. L. Weekly D2011 (Fla. 4th DCA Sept. 1, 2004). In Washington, this court held that a blanket notice of intent to seek enhanced sentencing was tantamount to no notice at all. Id. A motion for rehearing is currently pending.
The defendant then moved to withdraw its initial brief so that it could file a motion to correct a sentencing error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We initially granted the motion on October 29, 2004. The State filed an emergency motion for rehearing.
Washington spawned the filing of numerous motions by defendants requesting to withdraw their initial briefs to pursue rule 3.800(b)(2) motions in the trial court to raise the sentencing issue. Rule 3.800(b)(2) requires defendants to serve such motions "before the party's first brief is served." Fla. R.Crim. P.3.800(b)(2). The State argues that allowing a defendant to withdraw its brief permits the defendant to circumvent the express time frames designated by the rule. We agree.
We therefore grant the emergency motion for rehearing, vacate our order of October 29, 2004, and deny the defendant's motion to withdraw its initial brief. The appeal is to proceed.
SHAHOOD, TAYLOR and MAY, JJ., concur.