KEITH ERIC CHRISTIAN v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: May 4, 2022
• Docket: 21-2218
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 4, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2218 Lower Tribunal No. F17-2888 ________________

Keith Eric Christian, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Robert T. Watson, Judge.

Keith Eric Christian, in proper person.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before LINDSEY, HENDON and LOBREE, JJ.

PER CURIAM.

Appellant, Keith Eric Christian, was convicted of two counts of attempted second degree murder with a deadly weapon/firearm, in violation

of sections 782.04(2), 777.04, and 775.087, Florida Statutes (2017), and

sentenced to ten years of probation pursuant to his guilty plea on March 13,

2018. In 2020, the State filed an amended affidavit for violation of probation.

Christian was represented for a time by private counsel, who was

subsequently discharged, and the public defender was appointed. 1 On

August 22, 2021, Christian filed a motion to “correct charge and sentence”

pursuant to Florida Rule of Criminal Procedure 3.850. In his motion,

Christian challenges his convictions and sentence on the grounds that the

State improperly modified his charges from aggravated assault to attempted

murder, as he had a valid concealed weapons permit and the right to carry

his firearm, and he acted in self-defense without depraved mind or disregard

for human life. 2 The trial court summarily denied the motion as it was not

adopted by Christian’s counsel. This appeal ensued.

On appeal, the State acknowledges that it is unclear whether the trial

1 The record reflects that counsel was appointed to represent Christian for the probation violation proceeding but is silent as to whether counsel was also appointed for the postconviction motion. 2 Based on the charges at the time of his arrest rather than his conviction, Christian also contends that aggravated assault cannot be attempted nor reclassified due to the use of a firearm as it is an essential element of the charge.

2 court correctly denied the motion on the basis that it was not adopted by

Christian’s counsel. See Baker v. State, 210 So. 3d 140, 141 (Fla. 2d DCA

2016) (recognizing that although defendant represented by counsel does not

have right to file pro se motions, “this prohibition only extends to the

proceedings in which counsel represents the defendant”). Nonetheless, the

State urges a “tipsy coachman” affirmance on the basis that the motion was

untimely filed after the two-year period provided by rule 3.850(b). See

Jacobson v. State, 238 So. 3d 865, 867 (Fla. 2d DCA 2018) (applying tipsy

coachman doctrine to find that trial court should have denied 3.850 motion

as untimely); Miller v. State, 829 So. 2d 321, 322 (Fla. 5th DCA 2002)

(same). Finding that Christian has failed to demonstrate manifest injustice

or any grounds to excuse his procedural default, we affirm. See McGee v.

State, 327 So. 3d 382, 383 (Fla. 3d DCA 2021), review denied, No. SC21-

1506, 2022 WL 122323 (Fla. Jan. 13, 2022).

Affirmed.