Raul A. Campoverde v. State of Florida

SIXTH DISTRICT COURT OF APPEAL
                         STATE OF FLORIDA
                         _____________________________

                             Case No. 6D2026-0074
                       Lower Tribunal No. 2023-MM-000383
                        _____________________________

                               RAUL A. CAMPOVERDE,

                                        Appellant,

                                            v.

                                  STATE OF FLORIDA,

                                    Appellee.
                         _____________________________

                 Appeal from the County Court for Orange County.
                               Faye L. Allen, Judge.

                                    April 24, 2026

BROWNLEE, J.

      A criminal defendant has a constitutional right to appeal anchored in article

V, section 4(b)(1) of the Florida Constitution. Likewise, a criminal defendant has

the right to counsel, including the right to counsel on appeal. The question we face

today is whether a defendant may trigger our jurisdiction by filing a pro se notice of

appeal while represented by counsel. In concluding the defendant cannot, we trace

the relevant holdings of the Florida Supreme Court, follow the road paved by our

sister courts, and dismiss this case.
      Raul Campoverde filed a pro se notice of appeal, seeking to challenge the final

judgment and sentence entered against him. Because Campoverde filed his notice of

appeal pro se, this court directed the clerk of the lower tribunal to file a document

identifying the attorney who represented Campoverde at the time the trial court

entered its judgment and sentence, or to certify that Campoverde was unrepresented

throughout the trial court proceedings. The clerk of the lower tribunal responded that

Campoverde was indeed represented by counsel in the trial court.

      Upon receiving the clerk’s response, this court directed Campoverde’s trial

counsel to show cause why the notice of appeal should not be stricken as a nullity

because Campoverde filed it pro se while represented by counsel. Trial counsel

responded that he was a private attorney, retained to represent Campoverde in the

trial court only, and that he was not retained to represent Campoverde on appeal.

Counsel further explained Campoverde did not consult with him before filing the

notice of appeal, that he is not adopting the notice, and that the notice of appeal is a

“legal nullity” under Logan v. State, 846 So. 2d 472 (Fla. 2003).

      Whether Campoverde’s pro se notice of appeal is a legal nullity, or whether it

was sufficient to trigger our jurisdiction is something we must decide for ourselves.

See Shassian v. Riverwalk Park, LLC, 365 So. 3d 484, 486 (Fla. 6th DCA 2023)

(“We have an independent duty . . . to determine our jurisdiction.” (citations

omitted)).

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       At the outset, we note that the Florida Constitution confers jurisdiction on this

court “to hear appeals, that may be taken as a matter of right, from final judgments

or orders of trial courts, including those entered on review of administrative action,

not directly appealable to the supreme court or a circuit court.” Art. V, § 4(b)(1), Fla.

Const. According to the Florida Supreme Court, this provision “affords criminal

defendants a constitutional right to an appeal.” McFadden v. State, 177 So. 3d 562,

566 (Fla. 2015). But that right is not unfettered, and reasonable conditions have been

placed upon it. See § 924.051(8), Fla. Stat. (“It is the intent of the Legislature that

all terms and conditions of direct appeal . . . be strictly enforced, including the

application of procedural bars, to ensure that all claims of error are raised and

resolved at the first opportunity. It is also the Legislature’s intent that all procedural

bars to direct appeal and collateral review be fully enforced by the courts of this

state.”).

       The Florida Supreme Court has adopted rules of judicial practice and

procedure for invoking appellate jurisdiction, as required by article V, section 2(a)

of the Florida Constitution. See art. V, § 2(a), Fla. Const. (“The supreme court shall

adopt rules for the practice and procedure in all courts including the time for seeking

appellate review . . . .”). For example, it adopted Florida Rule of Appellate Procedure

9.140(b)(3), which allows for the commencement of criminal appeals “at any time

between rendition of a final judgment and 30 days following rendition of a written

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order imposing sentence.” Fla. R. App. P. 9.140(b)(3); see also Fla. R. App. P.

9.110(b) (requiring that notice of appeal from a final judgment must be filed “within

30 days of rendition of the order to be reviewed”). It also adopted Florida Rule of

Appellate Procedure 9.140(d)(1), which makes it the professional duty of attorneys

of record to continue to represent criminal defendants until certain tasks are

completed, including filing the notice of appeal on a defendant’s behalf.

      Like the right to appeal, criminal defendants also enjoy the right to counsel on

direct appeal under both the Sixth and Fourteenth Amendments to the United States

Constitution, as well as article I, section 16(a) of the Florida Constitution. And of

course, a criminal defendant may also represent himself. See Pasha v. State, 39 So.

3d 1259, 1261 (Fla. 2010) (“[T]he Sixth and Fourteenth Amendments include a

‘constitutional right to proceed without counsel when’ a criminal defendant

‘voluntarily and intelligently elects to do so.’” (quoting Indiana v. Edwards, 554

U.S. 164, 128 S. Ct. 2379, 2383, 171 L. Ed. 2d 345 (2008))). But a defendant has no

right to do both at the same time. As the Florida Supreme Court put it:

      More than twenty years ago, this Court explained that the Sixth
      Amendment to the United States Constitution, as interpreted in Faretta
      v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), does
      not “guarantee that the accused can make his own defense personally
      and have the assistance of counsel.” State v. Tait, 387 So. 2d 338, 339–
      40 (Fla.1980). Likewise, article I, section 16 of the Florida Constitution
      does not “embody a right of one accused of crime to representation both
      by counsel and by himself.” Id. at 340; see also Mora v. State, 814 So.
      2d 322, 328 (Fla.) (“[T]here is no constitutional right for hybrid
      representation at trial.”), cert. denied, 537 U.S. 1050, 123 S.Ct. 603,
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      154 L.Ed.2d 526 (2002). Thus, as the Fifth District Court of Appeal
      succinctly stated in Sheppard v. State, 391 So. 2d 346 (Fla. 5th DCA
      1980), shortly after this Court decided Tait, “[t]he defendant, under
      appropriate circumstances, has the constitutional right to waive counsel
      and represent himself. The defendant has no right, however, to partially
      represent himself and, at the same time, be partially represented by
      counsel.” Id. at 347 (citations omitted).

Logan, 846 So. 2d at 474–75 (footnote omitted).

      The Florida Supreme Court later clarified that the Logan rule is not limited to

cases where a defendant is represented by trial (but not appellate) counsel. Johnson

v. State, 974 So. 2d 363, 364 (Fla. 2008). Rather, the rule “applies to any pro se

filings submitted by litigants seeking affirmative relief in the context of any criminal

proceeding where a death sentence has not been imposed, whether direct or

collateral, either in the trial court or a district court of appeal, and who are

represented by counsel in those proceedings.” Id. at 364–65 (emphasis added). The

Johnson court then instructed that, in accordance with its manual of internal

operating procedures, “[a]ny papers filed pro se, addressing matters that are related

to such ongoing proceedings, whether in the form of a petition, notice, motion, or

another form of request for relief, will be deemed unauthorized and subsequently

dismissed.” Id.




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      Subject to specific exceptions, 1 the Florida Supreme Court has employed the

Logan rule to strike all sorts of pro se filings, including notices that would otherwise

invoke an appellate court’s jurisdiction. See Morgan v. State, 143 So. 3d 920, 920

(Fla. 2014) (“It appearing to this Court that petitioner has filed the instant pro se

notice to invoke discretionary jurisdiction while represented by counsel, the notice

is hereby stricken as an unauthorized pleading, and the cause is dismissed.”);

Addison v. Hardy, 103 So. 3d 138 (Fla. 2012) (“It appearing to this Court that

petitioner has filed the instant pro se petition while represented by counsel, the

petition for writ of habeas corpus is hereby stricken as an unauthorized pleading, and

the cause is dismissed.”); Quinones v. State, 103 So. 3d 141 (Fla. 2012) (“It

appearing to this Court that petitioner has filed the instant pro se petition while

represented by counsel, the petition for writ of prohibition is hereby stricken as an

unauthorized pleading, and the cause is dismissed.”).




      1
        For example, in Logan, the Florida Supreme Court explained courts have not
viewed a pro se pleading, in which a request to discharge counsel was made, as a
legal nullity where a “pro se criminal defendant is affirmatively seeking to discharge
his or her court-appointed attorney.” Logan, 846 So. 2d at 476. The Court later
announced yet another exception “where a defendant files a pro se motion to
withdraw a plea pursuant to rule 3.170(l), which contains specific allegations that
give rise to an adversarial relationship, such as misadvice, affirmative
misrepresentations, or coercion that led to the entry of the plea. Sheppard v. State,
17 So. 3d 275, 277 (Fla. 2009).

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       Our sister courts have followed suit. See Gilbert v. Singletary, 632 So. 2d

1104, 1104 (Fla. 4th DCA 1994) (refusing to entertain pro se habeas petition where

petitioner was represented by counsel and direct appeal was pending, and stating, “a

party may not be simultaneously represented by counsel and yet file pro se pleadings

or petitions in the same case”); Thompson v. State, 615 So. 2d 737, 741 (Fla. 1st

DCA 1993) (holding that pro se motion for discharge filed when defendant was

represented by counsel is a nullity); Salser v. State, 582 So. 2d 12, 14 (Fla. 5th DCA

1991) (same); Farrell v. State, 317 So. 3d 1277, 1277 (Fla. 1st DCA 2021)

(dismissing appeal and citing cases for propositions that criminal defendant cannot

proceed pro se while represented by counsel and trial counsel retains status as

counsel for party in appellate court under rule 9.360(b)).

       We must do the same here. Campoverde was represented by counsel at the

time he filed his pro se notice of appeal. Indeed, the filings in this case show that

Campoverde hired private counsel to represent him below and that Campoverde and

the State reached a negotiated resolution of this case. But there is no record of any

order permitting defense counsel to withdraw, see Fla. R. App. P. 9.140(d)(1), and

“[a]ttorneys . . . in the lower tribunal . . . retain their status in the court unless others

are duly appointed or substituted[.]” Fla. R. App. P. 9.360(b). Nor has defense

counsel attempted to adopt the pro se notice of appeal. See State v. Craven, 955 So.

2d 1182, 1184 (Fla. 4th DCA 2007) (“In some situations, defense counsel can adopt

                                             7
and proceed to argue his client’s pro se filings.”). Finally, no exception to the Logan

rule applies in this case, as Campoverde has not made an unequivocal request to

discharge counsel. See Logan, 846 So. 2d at 479; Crandall v. State, 387 So. 3d 1259,

1262 (Fla. 5th DCA 2024) (“Crandall’s motion did not contain an unequivocal

request to discharge his counsel. His motion was therefore a nullity and should have

been stricken.”). Accordingly, Campoverde’s pro se notice of appeal is a nullity.

      Having failed to file an authorized notice of appeal in accordance with the

Florida Rules of Appellate Procedure within thirty days of his judgment and

sentence, Campoverde has not invoked this court’s jurisdiction. See Fla. R. App. P.

9.140(b)(3); Helmich v. Wells Fargo Bank, N.A., 136 So. 3d 763, 764 (Fla. 1st DCA

2014) (recognizing that the requirement of filing a notice of appeal within thirty days

is “jurisdictional and irremediable” (citing Sims v. State, 998 So. 2d 494, 509–11

(Fla. 2008))).

      Accordingly, we strike Campoverde’s pro se notice of appeal and dismiss this

case for lack of jurisdiction. We do so without prejudice to Campoverde’s filing a

petition for belated appeal, under Florida Rule of Appellate Procedure 9.141(c), in

the event he can do so in good faith.

      DISMISSED.

NARDELLA and WOZNIAK, JJ., concur.




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Brian F. Greenwald, of Brian F. Greenwald, P.A., Longwood, for Appellant.

No Appearance for Appellee.


 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
          AND DISPOSITION THEREOF IF TIMELY FILED




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