Gillette v. State

378 So.3d 1274

Joseph GILLETTE, Jr., Appellant,

v.STATE of Florida, Appellee.

No. 2D22-191

District Court of Appeal of Florida, Second District.

February 7, 2024

Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.

Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Samuel R. Mandelbaum, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Joseph Gillette, Jr., appeals the order revoking his probation and imposing a five-year prison sentence. The order arises from an underlying felony battery case in which Mr. Gillette sought to withdraw his plea. The trial court improperly disposed, of Mr. Gillette’s motions to withdraw plea.¹ See Sheppard v. State, 17 So. 3d 275, 287 (Fla. 2009). Thus, we reverse and remand for further proceedings.

Background

As will be described in more detail below, the facts and procedural history of this case are a morass. For starters, our record reflects, that on August 9, 2021, Mr. Gillette pleaded guilty in Case Number 21-2816-CF to one count of felony battery as well as to several misdemeanor offenses in Cage Numbers 21-6738-MM and 21-1952-MM. Particularly significant, earlier, on August 5, 2021, the State charged Mr. Gillette in Case Number 21-8922-MM with violating a no-contact order entered in the felony battery case.

At the plea hearing, his lawyer announced:

Mr. Gillette is present in the courtroom. I went over a plea form with him in back, explained to him we’re taking care -- up here --we’re taking care of all of his cases today.

I explained to him what the disposition would be and that he would get a copy of this prior to his release sometime later today.

(Emphasis added.) The trial court accepted Mr. Gillette’s plea and sentenced him to two years’ probation. The probation order was rendered on August 16, 2021. See Fla. R. App. P. 9.020(h) ("An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.").

Contrary to his understanding about a prompt release on August 9, Mr. Gillette remained jailed. In an August 10, 2021, letter to the trial court, Mr. Gillette complained, "I [am] stuck in jail still!" He emphasized that "the deal was that I would be released that day[, August 9, 2021,] and would have to report to probation on 8/10/21. The only move I made was from Max to C barex [sic], and held on a 10,000 dollar bail."

It seems that Mr. Gillette remained in jail because of his arrest in Case Number 21-8922-MM. Mr. Gillette posted bail in that case within seven or eight days of his August 9, 2021, plea. Within days, however, law enforcement officers arrested him for violating his probation; again, he attempted to contact the felony battery victim.

Back in jail, Mr. Gillette sent a September 9, 2021, letter to the trial court, referencing Case Number 21-2816-CF. He complained that he was in jail because his August 9, 2021, plea did not resolve all his pending cases. He protested that trial counsel "did not write in Case Number 21-8922-MM." He stated that the prosecutor assured him at the August 9, 2021, hearing that she would "Ammend [sic] in case #21-8922-MM." The correspondence continued:

I’m still in jail…. [Trial counsel] did not write in Case Number 21-8922-MM….

I called [trial counsel] and he will not help me…. You took my plea because all charges were to be done and I would be released that day! The sentese [sic] papers you gave me state all charges and that I would be immediately released …. I wish to withdraw my plea!

For unknown reasons, Case Number 21-2816-CF, was crossed out on the letter and two misdemeanor cases were written in, seemingly not by Mr. Gillette:

378 So.3d 1276.bmp

To add to the confusion, the letter was routed to county court Judge Grissinger rather than to circuit court Judge Helinger to whom the letter was addressed. Stamped at the top of the letter is the following:

378 So.3d 1277.bmp

Despite bearing a September 9, 2021, date, Mr. Gillette’s letter was not filed with the clerk until September 22, 2021.

Mr. Gillette sent another letter to the trial court, dated September 10, 2021, again referencing Case Number 21-2816-CF. This time, Mr. Gillette wrote:

I tried to get the attorney you gave me to withdraw my plea sence [sic] 8/10/21 only he refused to even talk to me!

Now I’m still in jail and 30 days have gone by and I’ve not started probation or even met any one [sic]! I wish to receive a court date with Division] I Judge Helinger. Please.²

The clerk filed this letter on September 13, 2021.

Following a hearing on the no-contact probation violation, the trial court revoked Mr. Gillette’s felony battery probation and sentenced him to five years’ prison. The revocation order and sentence were rendered on December 2, 2021. The motions to withdraw plea, however, remained pending.

Thereafter, Mr. Gillette’s new lawyer filed a motion to withdraw plea.³ See Fla. R. Crim. P. 3.170(l). The motion alerted the trial court to Mr. Gillette’s earlier letters requesting to withdraw his August 9, 2021, plea. At a December 10, 2021, nonevidentiary hearing, the trial court remarked that "the time has passed" for Mr. Gillette to withdraw his plea, explaining that "your … thirty days is over." Mr. Gillette filed a premature notice of appeal on January 6, 2022.

Some three months after the hearing, on March 29, 2022, the trial court signed a more elaborate order dismissing Mr. Gillette’s motions to withdraw plea. The trial court found that the letters were untimely and meritless. The trial court explained that because it sentenced Mr. Gillette on August 9, 2021, "[a]ny motion to withdraw plea … would be untimely after September 8, 2021." The trial court also observed that Mr. Gillette. "failed to demonstrate that a withdrawal of his plea is necessary to correct a manifest injustice" because he "was released on bond in case, 21-08922-MM shortly after he entered his plea."

Analysis

I. Jurisdiction: Timeliness, Tolling, and Forgery

We begin by examining our jurisdiction to consider this appeal. See State v. Hall, 351 So. 3d 654, 657 n.4 (Fla. 2d DCA 2022) ("We always ‘have jurisdiction to determine the issue of [our] own jurisdiction.’" (alteration in original) (quoting Lackner v. Cent. Fla. Invs., Inc., 14 So. 3d 1050, 1055 (Fla. 5th DCA 2009))).

Our jurisdiction turns upon the timeliness and the nature of the order before us. Ordinarily, the former is easy to evaluate. A notice of appeal must generally be filed "with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed." Fla. R. App. P. 9.110(b). Here, however, timeliness is a stickier wicket.

[1] The trial court found that Mr. Gillette’s September 9 and September 10, 2021, letters were not filed by September 8, 2021. The trial court calculated that September 8 was the last, day on which Mr. Gillette could move to withdraw his August 9, 2021, plea. We disagree.

Rule 3.170(l) provides that "[a] defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence." The trial court accepted Mr. Gillette’s guilty plea and orally pronounced sentence on August 9, 2021. However, the probation order was not rendered until August 16, 2021, when it was filed with the clerk. See Fla. R. App. P. 9.020(h). Mr. Gillette timely filed his two September letters within thirty days of rendition. See Fla. R. Crim. P. 3.170(l).

We step back to address the State’s contention that the September 9, 2021, letter, filed on September 22, 2021, is untimely. The State questions the veracity of the "September 9, 2021," date on the letter. It notes that the September 10, 2021, letter was filed September 13, 2021, in a much timelier manner. Seemingly, the State suggests that Mr. Gillette backdated his September 9, 2021, letter.⁴ But, the State does not contest that Mr. Gillette was in jail on September 9 and September 10, 2021.

[2] "Under the so-called mailbox rule, the timeliness of a pro se inmate’s pleading is measured from the date the inmate places the document in the hands of the prison (or jail) official for mailing." Scullock v. Gee, 133 So. 3d 1208, 1209 (Fla. 2d DCA 2014); see also Haag v. State, 591 So. 2d 614, 617 (Fla. 1992). Ordinarily, the institutional "legal mail" date stamp is affixed to an inmate’s filing.

[3] Unfortunately, there is no jail date stamp on either of Mr. Gillette’s September letters. Consequently, we use the date Mr. Gillette furnished. We have previously stated that, "[t]he date on the certificate of service creates a rebuttable presumption that the motion was actually placed in an official’s hands on that date." Kerr v. State, 148 So. 3d 123, 124 (Fla. 2d DCA 2014).

[4] The State failed to rebut this presumption. In fact, the accumulated anomalies in our record indicate that the September 9, 2021, letter was timely filed, For one thing, Mr. Gillette’s September 9, 2021, letter was inexplicably altered so that it was filed in a different court case. And the stamp at the top of the letter stating that it was an ex parte communication not reviewed by the judge to whom it was incorrectly routed no doubt contributed to a delay in filing. We know this because the actual filing itself includes the stamp from the county court judge’s chambers. Apparently, the September 9, 2021, letter was not first filed with the clerk, but was instead routed to the (wrong) judge who, at some point, stamped it and sent it to the clerk for filing.

[5] A timely filed motion to withdraw plea tolls rendition of an otherwise final and appealable order. See Fla. R. App. P. 9.020(h)(1)(I). Because Mr. Gillette filed his notice of appeal on January 6, 2022, following the trial court’s December 10, 2021, oral pronouncement dismissing Mr. Gillette’s motions to withdraw plea but before the March 30, 2022,...