JOSEPH M. BOULE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred in dismissing a second postconviction relief motion filed during pendency of appeal from first motion, as courts retain concurrent jurisdiction to consider subsequent motions raising unrelated issues.
A trial court has concurrent jurisdiction to consider a subsequent postconviction motion raising issues unrelated to those in a prior motion, even while an appeal from the first motion is pending.
[1] A trial court retains concurrent jurisdiction to consider a subsequent postconviction relief motion raising issues unrelated to those in a prior motion pending appeal.
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Join FLexlaw to unlock all legal intelligenceBoule pleaded guilty to charges in exchange for 11 months and 29 days in county jail plus 3 years probation. When he violated probation, the court imp…
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Joseph M. Boule, Jr., appeals from the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in lower case number 2007-CF-952. Boule originally entered a plea to the charges in this case in exchange for a sentence of 11 months and 29 days in the county jail followed by 3 years of drug offender probation. When Boule violated his probation, the court imposed a sentence of 15 years in prison on the most serious of the charges. Thereafter, Boule timely filed a 3.850 motion challenging his original plea and sentence, which the trial court summarily denied. Boule appealed the denial order and, while this appeal was pending, filed a second 3.850 motion challenging his counsel’s representation during the violation of probation hearing. The trial court dismissed this second motion believing that it lacked jurisdiction to entertain it in light of the pending appeal of Boule’s first 3.850 motion. Boule filed this appeal challenging dismissal of his second 3.850 motion.
As the State acknowledges on appeal, a trial court 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., concur.
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…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 the motion. Shortly thereafter, the Fifth District followed suit in Boule v. State, 64 So. 3d 753, 753 (Fla. 5th DCA 2011). [*664] Despite a clear trend in favor of concurrent jurisdiction, the rule announced in Gobie has not been completely abandoned. For example, in Washington v. State, 823 So. 2d 248, 249-50 (Fla. 4th DCA 2002), the court hel…
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Siskos v. State, 163 So. 3d 739 (Fla. 5th DCA 2015)…nding appeal. E.g., Tompkins v. State, 894 So. 2d 857, 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…
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Jones v. State, 135 So. 3d 1137 (Fla. 5th DCA 2014)…PER CURIAM. We reverse the trial court’s dismissal of Appellant’s second motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Boule v. State, 64 So. 3d 753 (Fla. 5th DCA 2011) (trial court has concurrent jurisdiction during the pendency of appeal from order denying postconviction relief to consider subsequent postconviction motion that raises issues unrelated to those presented in prior motion). We exp…
Authorities Cited
- Smith v. State, 34 So. 3d 818 (Fla. 2d DCA 2010)