ROBERT E. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed dismissal of postconviction motion, holding that trial courts retain concurrent jurisdiction to consider new postconviction motions raising unrelated issues despite pending appeals on prior postconviction motions.
A trial court has concurrent jurisdiction during pendency of an appeal of a postconviction order to consider a second postconviction motion that raises new issues unrelated to those in the pending appeal.
[1] A trial court retains concurrent jurisdiction to consider a second postconviction motion raising new issues unrelated to a pending appeal of a prior postconviction order,…
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Join FLexlaw to unlock all legal intelligence“A trial court has concurrent jurisdiction during the pendency of an appeal of a postconviction order to consider a second postconviction motion that raises new issues unrelated to the issues presented in the motion that is pending on appeal.”
Court's statement of the applicable law regarding trial court jurisdiction over postconviction motions during pending appeals.
Robert E. Smith filed a postconviction motion under Florida Rule of Criminal Procedure 3.850 while a prior postconviction appeal was pending in case n…
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Robert E. Smith appeals the dismissal of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the dismissal and remand for the trial court to consider Smith’s motion.
At the time that the trial court dismissed the motion at issue here, Smith had a pending appeal in this court in case number 2D08-5917 challenging the denial of a prior postconviction motion. Our record does not reveal whether the issues pending in case number 2D08-5917 involved the same or similar issues presented in the motion that is now pending on appeal. If the grounds are the same, Smith’s motion may be subject to dismissal as successive. See Fla. R.Crim. P. 3.850(f). However, the postconviction court erred in dismissing for lack of jurisdiction solely due to the pending appeal in 2D08-5917. “A trial court has concurrent jurisdiction during the pendency of an appeal of a postconviction order to consider a second postconviction motion that raises new issues unrelated to the issues presented in the motion that is pending on appeal.” Brinson v. State, 25 So.3d 1255, 1256 (Fla. 2d DCA 2010) (citing Wheeler v. State, 918 So.2d 369 (Fla. 1st DCA 2005)).
Reversed and remanded.
ALTENBERND and WALLACE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…xpanded and cemented in two subsequent cases, which held that concurrent jurisdiction exists when the second postconviction motion raises new issues unrelated to those raised in the first motion, regardless of the type of motion. See Smith v. State, 34 So. 3d 818, 818 (Fla. 2d DCA 2010); Brinson v. State, 25 So. 3d 1255, 1256 (Fla. 2d DCA 2010). In Smith, 34 So. 3d at 818, this court suggested that unless a motion qualifies to be dismissed as successive, the trial court has concurrent jurisdiction to rule on…1 / 2
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Siskos v. State, 163 So. 3d 739 (Fla. 5th DCA 2015)…57, 859 (Fla.2005); Jones v. State, 135 So. 3d 1137 (Fla. 5th DCA 2014); Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012); Jackman v. State, 88 So. 3d 325, 327 (Fla. 4th DCA 2012); Boule v. State, 64 So. 3d 753 (Fla. 5th DCA 2011); Smith v. State, 34 So. 3d 818 (Fla. 2d DCA 2010). Siskos’s pending postconviction appeal, and the allegation raised in the amended motion, are clearly related. Consequently, the trial court had no jurisdiction to enter its order. REVERSED. ORFINGER, LAWSON and WALLIS, JJ., c…
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Boule v. State, 64 So. 3d 753 (Fla. 5th DCA 2011)…t has concurrent jurisdiction during the pendency of an appeal from an order denying postconviction relief to consider a subsequent postconviction motion that raises issues unrelated to those presented in the prior motion. See, e.g., Smith v. State, 34 So. 3d 818 (Fla. 2d DCA 2010). Accordingly, we reverse the order on appeal and remand with directions that the trial court consider Boule’s motion for postconviction relief. REVERSED AND REMANDED WITH DIRECTIONS. ORFINGER, C.J., LAWSON, and COHEN, JJ., con…
Authorities Cited
- Wheeler v. State, 918 So. 2d 369 (Fla. 1st DCA 2005)
- Maglio v. State, 918 So. 2d 369 (Fla. 4th DCA 2005)
- Brinson v. State, 25 So. 3d 1255 (Fla. 2d DCA 2010)