FITZGERALD LIVINGSTON WHITE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The trial court erred in dismissing a Rule 3.850 motion for lack of jurisdiction based on a pending habeas corpus petition.
[1] Allegations of ineffective assistance of appellate counsel are not cognizable under a Rule 3.850 motion because they do not relate to the trial court.
[2] Allegations of ineffective assistance of trial counsel are properly presented to the trial court by a Rule 3.850 motion.
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Join FLexlaw to unlock all legal intelligenceDefendant filed a Rule 3.850 motion for ineffective assistance of trial counsel, and separately filed a habeas corpus petition for ineffective assista…
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WELLS, Judge.
Defendant appeals from an order dismissing his Rule 3.850 motion for lack of jurisdiction. We reverse and remand for consideration of this motion.
On January 13, 2002, Defendant filed a Rule 3.850 motion in the court below claiming ineffective assistance of trial counsel. See Fla. R.Crim. P. 3.850. Approximately a month later, Defendant filed a petition for writ of habeas corpus in this court claiming ineffective assistance of appellate counsel. Believing that it was without jurisdiction to entertain the Rule 3.850 motion while the habeas corpus petition was pending, the trial court dismissed the Rule 3.850 motion for lack of jurisdic tion. As the State correctly concedes, the motion should not have been dismissed because the two claims are separate and distinct and thus may proceed simultaneously:
In Knight v. State, 394 So. 2d 997 (Fla.1981), we recognized that allegations of ineffectiveness of appellate counsel are not cognizable under a Rule 3.850 motion because they do not relate to anything done by or transpiring before the trial court. Such allegations, we held, should be addressed to the appellate court by means of a petition for habeas corpus. On the other hand, allegations of ineffectiveness of legal counsel at one’s trial are properly presented to the trial court by a Rule 3.850 motion. Smith v. State, 400 So. 2d 956 (Fla.1981); Meeks v. State, 382 So. 2d 673 (Fla.1980). Since the two judicial attacks on petitioner’s convictions and sentences ... were thus separate and distinct, there was no danger ... of conflicting and confusing rulings by different courts on the same issues.... We do not perceive so substantial a problem of confusion as to require us to hold that the pendency of one kind of proceeding deprives the other court of jurisdiction to proceed.
Francois v. Klein, 431 So. 2d 165, 166 (Fla.1983); See Gawronski v. State, 801 So. 2d 211 (Fla. 2d DCA 2001).
Moreover, the habeas corpus petition has now been denied. We therefore reverse and remand for the trial court to consider the merits of the Defendant’s 3.850 motion.
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State v. Overton, 970 So. 2d 359 (Fla. 3d DCA 2007)…lief is a separate issue apart from whether the motion for post-conviction relief was timely filed. These are two distinct legal issues that could have been determined concurrently by both the trial court and the appellate court. See White v. State, 855 So. 2d 723 (Fla. 3d DCA 2003). Moreover, a mandate ends the jurisdiction of the appellate court and returns full jurisdiction to the trial court. See State v. Miyasato, 805 So. 2d 818 (Fla. 2d DCA 2001).…
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Kanisky Evans v. State, 962 So. 2d 938 (Fla. 3d DCA 2007)…entertain the motion while the habeas corpus petition was pending in this court. However, the trial court should not have dismissed the 3.850 motion because the two claims are separate and distinct and may proceed simultaneously. See White v. State, 855 So. 2d 723 (Fla. 3d DCA 2003). We therefore reverse the order below striking the defendant’s motion for post-conviction relief and remand for the trial [*939] court to reinstate and consider the merits of the petition. Reversed and remanded. . As of this wr…
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Reidy v. State, 30 So. 3d 705 (Fla. 5th DCA 2010)…rt.1 The pendency of an original petition alleging ineffective assistance of appellate counsel in this court does not divest the trial court of jurisdiction to consider a motion for postconviction relief filed pursuant to rule 3.850. White v. State, 855 So. 2d 723, 724 (Fla. 3d DCA 2003). Accordingly, the order of dismissal is reversed and Reidy’s motion is reinstated for consideration by the trial court. REVERSED AND REMANDED. MONACO, C.J, GRIFFIN and COHEN, JJ., concur. . Reidy’s petition has since b…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Smith v. State, 400 So. 2d 956 (Fla. 1981)
- Francois v. Klein, 431 So. 2d 165 (Fla. 1983)
- Gawronski v. State, 801 So. 2d 211 (Fla. 2d DCA 2001)