JEROME BAILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Bailey appeals the summary denial of his post-conviction motion for ineffective assistance of counsel filed under Florida Rule of Criminal Procedure 3.850. The court reversed the trial court's dismissal of the motion as successive, finding that Bailey's first 3.850 motion filed while his conviction was on appeal did not give the trial court jurisdiction, making his second motion timely and not procedurally barred.
The court held that Bailey's second motion is not procedurally barred as successive because the trial court lacked jurisdiction to consider his first motion on the merits when it was filed and denied during the pendency of his appeal. Therefore, the second motion must be remanded to the trial court for consideration.
[1] A post-conviction relief motion filed while a conviction is on appeal is not considered a prior adjudication on the merits for purposes of determining if a subsequent mot…
[2] A second motion for post-conviction relief is not procedurally barred as successive when the first motion was filed and denied during the pendency of the defendant's appe…
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Join FLexlaw to unlock all legal intelligence“where the trial court did not have jurisdiction to consider Bailey's first rule 3.850 motion on the merits, his second rule 3.850 motion was not successive”
The legal principle that determines when a motion is properly considered successive versus timely filed, based on whether the trial court had jurisdiction over the first motion.
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Join FLexlaw to unlock all legal intelligenceBailey filed his first pro se motion for post-conviction relief under rule 3.850 while his appeal of his judgment and sentence was pending. This first…
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PER CURIAM.
Jerome Bailey appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Upon the state’s concession we reverse the trial court’s denial and remand for the trial court to consider Bailey’s motion.
It appears that while Bailey’s appeal of his judgment and sentence was pending, he filed his first pro se motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On April 9, 1997, Bailey’s motion was denied. Bailey did not appeal the trial court’s order. Instead, on September 2, 1999, Bailey filed a second pro se motion for post-conviction relief pursuant to rule 3.850. The trial court required the state to respond to Bailey’s motion.
In its response, the state urged that Bailey had previously sought post-conviction relief complaining of ineffective assistance of counsel. In his reply to the state’s response, Bailey stated that at the time he filed his first rule 3.850 motion, the trial court did not have jurisdiction to consider it.
Despite Bailey’s reply, the trial court, adopting the state’s response, denied relief finding the motion to be successive. Attached to the state’s response was the trial court’s earlier order of April 9, 1997, denying relief. Consequently Bailey appealed the summary denial of his motion and filed an initial brief.
In turn, the Attorney General filed its answer brief explaining that because the trial court did not have jurisdiction to consider Bailey’s first rule 3.850 motion on the merits, his second rule 3.850 motion was not successive. See Daniels v. State, 712 So. 2d 765 (Fla.l998)(holding that where a defendant’s first motion was both filed and denied while his conviction was on appeal, his second motion is not procedurally barred). The State concedes that trial court decision should be reversed and Bailey’s motion should be remanded to the trial court for further consideration. Without passing on the merits of Bailey’s motion, we agree.
Accordingly, the trial court’s order summarily denying Bailey’s rule 3.850 motion is reversed and remanded for consideration by the trial court.
GUNTHER, GROSS and TAYLOR, JJ., concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)