MARTIN DAVID KOPKO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Martin Kopko appealed the lower court's denial of his post-conviction relief motion, which was rejected solely on the basis that it was time-barred. The Fifth District reversed, finding that given the complex procedural history involving multiple reversals and remands of Kopko's sentence, the lower court erred in concluding his opportunity to seek post-conviction relief had expired.
The lower court erred in concluding that Kopko's opportunity to seek post-conviction relief had expired. The court reversed and remanded the case, finding that the procedural history and the court's prior ruling allowing the sentencing appeal to proceed first gave it jurisdiction to consider the remaining thirteen grounds of the post-conviction motion.
[1] A court has jurisdiction to consider an appeal when it has previously ruled that the appeal could not be heard until the disposition of a related sentencing appeal.
[2] A motion for post-conviction relief is not time-barred when the procedural history of the case involves multiple appeals and remands for resentencing.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“On the merits, the lower court erred in concluding that Mr. Kopko's opportunity to seek post-conviction relief had expired.”
The court's main holding that the trial court incorrectly applied the time-bar to the post-conviction relief motion.
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Join FLexlaw to unlock all legal intelligenceKopko was convicted of sexual battery and lewd assault. His conviction was reversed in 1991, and the case was remanded for new trial. Following multip…
The full statement of facts, procedural history, and disposition for this case are member content.
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GRIFFIN, C.J.
We have before us the appeal of the denial of appellant’s motion for post-conviction relief. The denial was based solely on the lower court’s conclusion that Mr. Kopko’s motion was time barred. We reverse.
This case has an unusual procedural history. Mr. Kopko was charged with and convicted of two offenses: sexual battery and lewd assault. In 1991, this court reversed the conviction and remanded for a new trial. A sentencing error was raised but was moot in light of our reversal of the conviction. Kopko v. State, 577 So. 2d 956 (Fla. 5th DCA 1991). In 1992, the supreme court quashed our opinion. We accordingly remanded the case below to correct the sentencing error. After resentencing, Mr. Kopko again appealed and we again reversed the sentence. He was again resentenced and no appeal was taken.
On July 24, 1996, Mr. Kopko filed a fourteen-ground motion for post-conviction relief. The fourteenth ground sought a belated appeal of the most recent sentence. The other thirteen grounds were addressed to the trial and convictions. The lower court granted the belated appeal. Then, in light of the belated appeal of the sentence, this court dismissed the appeal of the other thirteen claims as premature until the belated appeal was decided and specified the dismissal was without prejudice. Then, once again, we reversed the sentence and again remanded for re-sentencing. Kopko v. State, 709 So. 2d 159 (Fla. 5th DCA 1998). Consistent with the dismissal order and the court’s most recent opinion, Mr. Kopko again appealed the denial of the first thirteen grounds of his post-conviction motion.
We have invited a response from the state. The state suggests we lack jurisdiction to consider the appeal in light of our earlier dismissal without prejudice, but otherwise does not attempt to support the lower court’s ruling. Given the procedural history of this case and this court’s prior ruling that this appeal could not be heard until disposition of the sentencing appeal, we conclude that we have jurisdiction. On the merits, the lower court erred in concluding that Mr. Kopko’s opportunity to seek post-conviction relief had expired. See Rosier v. State, 655 So. 2d 160 (Fla. 1st DCA), review denied, 663 So. 2d 632 (Fla. 1995); Fla. R.Crim. P. 3.850(b).1
REVERSED and REMANDED.
W. SHARP and ANTOON, JJ., concur. . Even if this were not so, it appears appellant might be entitled to file a belated 3.850 pursuant to Steele v. Kehoe, 724 So. 2d 1192 (Fla. 5th DCA), review granted, 722 So. 2d 194 (Fla.1998) in light of his claim that he relied on advice of counsel that the 3.850 motion could not be filed while the appeal process remained pending.
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- Dixon v. Singletary, 724 So. 2d 1192 (Fla. 3d DCA 1998)
- Kopko v. State, 577 So. 2d 956 (Fla. 5th DCA 1991)
- Moore v. Earnest Glen Moore, 655 So. 2d 160 (Fla. 1st DCA 1995)
- Kopko v. State, 709 So. 2d 159 (Fla. 5th DCA 1998)