Simmons, Jr. v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
ABRAHAM SIMMONS, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2025-0401
January 16, 2026
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for
Sarasota County; Thomas W. Krug, Judge.
PER CURIAM.
Abraham Simmons, Jr., appeals the order striking his amended
motion to correct illegal sentence. The postconviction court found that
Simmons was represented by counsel and struck his motion as a nullity
without prejudice to his filing a motion through counsel. See Murray v.
State, 1 So. 3d 407, 408 (Fla. 2d DCA 2009) ("A defendant does not have
the right to file pro se motions while also represented by counsel, and
such motions should be treated as nullities unless they unequivocally
seek to discharge counsel."). However, the court attached nothing from
the record supporting its finding that Simmons was represented by
counsel for purposes of filing a motion under Florida Rule of Criminal

2
Procedure 3.800(a).1 Accordingly, we reverse and remand for further
proceedings.
Reversed and remanded.
NORTHCUTT, KELLY, and VILLANTI, JJ., Concur.
Opinion subject to revision prior to official publication.
1 Simmons asserted in his motion for rehearing that the
postconviction court overlooked that it had only appointed counsel to
represent him with regard to his rule 3.850 motion. Thus, he argued, his
rule 3.800(a) motion should not have been stricken as a nullity. See
Baker v. State, 210 So. 3d 140, 142 (Fla. 2d DCA 2016) (reversing order
striking Baker's rule 3.850 motion as a nullity because nothing in the
record showed that counsel was appointed to do anything more than
represent Baker in his revocation of probation proceeding); Murray, 1 So.
3d at 407 ("In order for the postconviction court to summarily dismiss
Murray's pro se motion for DNA testing under rule 3.853 as a nullity, the
postconviction court must attach specific record support to the order of
dismissal showing that Murray was represented by counsel either
appointed or retained for the specific purpose of representing him on his
rule 3.853 motion."). The postconviction court also struck the motion for
rehearing as a nullity.