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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