Bryant v. State

• Decision Date: 06 January 2012
• Docket Number: No. 2D11–2185.,2D11–2185.
• Citation: 102 So.3d 660
• Parties: Tommy Ray BRYANT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

102 So.3d 660

Tommy Ray BRYANT, Appellant,

v.STATE of Florida, Appellee.

No. 2D11–2185.

District Court of Appeal of Florida, Second District.

Jan. 6, 2012.

Tommy Ray Bryant, pro se.

EN BANC

ALTENBERND, Judge.

Tommy Ray Bryant appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised one claim based on newly discovered evidence. The postconviction court dismissed his motion for lack of jurisdiction because he had a pending appeal of an earlier order denying postconviction relief. We reverse and remand for the postconviction court to consider Mr. Bryant's motion on the merits. In so doing, we recede from a number of cases that support the postconviction court's ruling and certify conflict with similar cases from other districts.

I. Mr. Bryant's Plea and the Proceedings in the Trial Court on his Motions for Postconviction Relief.

On October 9, 2007, Mr. Bryant pleaded no contest to attempted sexual battery on a child under twelve and resisting an officer with violence. The trial court sentenced him as a habitual felony offender to eighteen years' imprisonment followed by four years' probation. In addition, he was designated a sex offender.

On January 21, 2009, Mr. Bryant filed his first motion for postconviction relief pursuant to rule 3.850. Following multiple amendments and responses from the State, the postconviction court denied Mr. Bryant's motion. On March 24, 2011, Mr. Bryant filed a timely notice of appeal of the summary denial of his first postconviction motion. That appeal is still pending.

Shortly after he filed the appeal, Mr. Bryant filed a second motion for postconviction relief pursuant to rule 3.850. This time he alleged a claim based on newly discovered evidence. This claim is separate from and unrelated to any of the claims he made in his first motion. Because the order denying Mr. Bryant's previous motion was still pending on appeal, the postconviction court dismissed the second motion for lack of jurisdiction. In fairness to the postconviction court, its ruling was supported by our case law. See e.g., Ruth v. State, 635 So.2d 1061, 1061 (Fla. 2d DCA 1994). Mr. Bryant has now appealed this second order.

II. The Development of Two Competing Lines of Cases Addressing Trial Court Jurisdiction over Postconviction Motions During the Pendency of Postconviction Appeals

When Florida Rule of Criminal Procedure 3.850 was first created in 1963—as Rule 1—to handle the influx of habeas corpus writs generated by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (Fla.1963), the rule was simpler and unsupported by a body of case law. Significantly, it did not contain a time limit for the filing of a motion.

The courts soon decided that a pending direct appeal deprived the trial court of the authority to consider relief on a postconviction motion. See Barton v. State, 193 So.2d 627, 627 (Fla. 2d DCA 1966). Even a pending effort to obtain supreme court review of a district court decision was regarded as a bar to the filing of a postconviction motion in the circuit court. See State v. Meneses, 392 So.2d 905, 907 (Fla.1981).¹ The case law explained that the trial court could not open a judgment or alter a sentence when the appellate court had jurisdiction over the judgment and sentence. ² Although this case law described the issue as one of “jurisdiction,” on reflection it might more accurately have been described as a limitation on the trial court's authority to rule. In other words, the trial court surely had the power to accept a filing from the defendant in the criminal case, but it could not grant relief; it could not alter the judgment or sentence without permission from the reviewing court.

The concept that the trial court lacked jurisdiction to consider a postconviction motion during the pendency of an appeal was expanded as early as 1966 to include an appeal of an order denying an earlier postconviction motion. See Gobie v. State, 188 So.2d 34, 34–35 (Fla. 3d DCA 1966). In Gobie, Judge Pearson dissented, pointing out that the motion raised different grounds and that a postconviction proceeding was technically an independent action, similar to habeas corpus. Id. at 35. Judge Pearson believed that the appellate court had not actually taken jurisdiction over the earlier judgment and sentence, but merely jurisdiction over the order in the independent postconviction proceeding. Id. The rule announced in Gobie impacted the decision-making in a number of districts for several years. ³ In an era when a time limit for filing postconviction motions did not exist, this rule may occasionally have delayed relief, but it did not result in any procedural bar that completely denied relief.

However, in 1984, rule 3.850 was amended and a time limit was placed on the filing of such motions. Thereafter, such a motion needed to be filed within two years of the date the judgment and sentence became final. See The Florida Bar re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So.2d 907, 907–08 (Fla.1984). With the adoption of this limitation, the rule announced in Gobie created the potential for an unintended procedural bar. If prisoners were denied jurisdiction to have new and potentially meritorious claims reviewed while a previous motion was pending on appeal, they might run the risk of being denied a remedy altogether due to the two-year time limit.

In this district, we did not immediately recognize this unintended consequence. In Braxton v. State, 568 So.2d 1003, 1003 (Fla. 2d DCA 1990), for example, we affirmed a trial court that entered an order under circumstances similar to the order that we reverse today, holding that the trial court had no jurisdiction to consider a postconviction motion because “there was pending in this court an appeal from another motion in the same case.” In fact, most, if not all of our decisions from 1984 to the early 1990s followed the rule announced in Gobie. See Ross v. State, 598 So.2d 149, 149 (Fla. 2d DCA 1992) (adopting the holding in Braxton );Rodriquez v. State, 592 So.2d 1261, 1261 (Fla. 2d DCA 1992) (adopting the holding in Braxton, though noting that the two motions raised essentially the same allegations); Ruth, 635 So.2d at 1061 (holding no trial court jurisdiction during pending postconviction appeal, citing Braxton and Ross );Davis, 491 So.2d at 1232.

The first cases to recognize the problem created by the two-year limitation were issued by the First District. Initially, the First District questioned this court's holding in Braxton, noting that “an appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal.” Kimmel v. State, 629 So.2d 1110, 1111 (Fla. 1st DCA 1994) (citing Palma Sola Harbour Condominium, Inc. v. Huber, 374 So.2d 1135, 1138 (Fla. 2d DCA 1979)). Applying this test, the First District reasoned that the trial court has not been divested of jurisdiction by an appeal from an order denying postconviction relief “ if the issues presented in a subsequent motion or petition are unrelated to those previously denied and which are then on appeal.” Id.

The First District subsequently relied on Kimmel to hold that “an appeal of a postconviction relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated.” Bates v. State, 704 So.2d 562, 563 (Fla. 1st DCA 1997). Bates proved to be a watershed decision, and the First District subsequently produced a number of similar holdings.⁴

This court expressly followed Bates in 1998, concluding that the trial court had jurisdiction to consider a rule 3.800 motion while a rule 3.850 motion was pending on appeal because the issues were dissimilar. ⁵Montague v. State, 710 So.2d 228, 229 (Fla. 2d DCA 1998). Our adherence to the rule in Bates was expanded 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 the motion. Shortly thereafter, the Fifth District followed suit in Boule v. State, 64 So.3d 753, 753 (Fla. 5th DCA 2011).

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 held that the trial court did not have jurisdiction to rule on a 3.850 motion presenting new grounds for relief while the order denying the prior rule 3.850 motion was pending appeal. In so ruling, the Fourth District suggested that because of the two-year time limitation, a better practice would be for “the second motion [to] be stayed rather than dismissed for lack of jurisdiction.” Id.

Subsequently, the Fourth District held that a pending appeal on a rule 3.800 motion does not divest the court of jurisdiction to consider a new 3.850 motion. Dugan v. State, 885 So.2d 1002, 1003 (Fla. 4th DCA 2004). The Fourth District recently concluded that the postconviction court did not have jurisdiction to consider the merits of a rule 3.800(a) motion where a prior rule 3.800(a) motion raising a related issue was on appeal. Davis v. State, 20 So.3d 1024, 1025–26 (Fla. 4th DCA 2009). However, the court implied that if each motion had raised unrelated issues, the postconviction court could have considered the second motion. Id. Similarly, recent decisions from the Third District hold that a pending rule 3.850 appeal does not deprive the postconviction court of jurisdiction...