Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Collier County; Frederick R. Hardt, Judge.
The opinion of the court was delivered by: Altenbernd, Judge.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Tommy Ray Bryant appeals the dismissal of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised one claim based on newly discovered evidence. The post-conviction court dismissed his motion for lack of jurisdiction because he had a pending appeal of an earlier order denying post-conviction relief. We reverse and remand for the post-conviction court to consider Mr. Bryant's motion on the merits. In so doing, we recede from a number of cases that support the post-conviction 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 Post-conviction 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 post-conviction relief pursuant to rule 3.850. Following multiple amendments and responses from the State, the post-conviction 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 post-conviction motion. That appeal is still pending.
Shortly after he filed the appeal, Mr. Bryant filed a second motion for post-conviction 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 post-conviction court dismissed the second motion for lack of jurisdiction. In fairness to the post-conviction 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 Post-conviction Motions During the Pendency of Post-conviction 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 (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 post-conviction 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 post-conviction motion in the circuit court. See State v. Meneses, 392 So. 2d 905, 907 (Fla. 1981).*fn1 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.*fn2 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 post-conviction motion during the pendency of an appeal was expanded as early as 1966 to include an appeal of an order denying an earlier post-conviction 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 post-conviction 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 post-conviction proceeding. Id. The rule announced in Gobie impacted the decision-making in a number of districts for several years.*fn3 In an era when a time limit for filing post-conviction 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 post-conviction 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 post-conviction 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 post-conviction 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 post-conviction relief matter will not deprive trial courts of ...