BRADLEY A. WILLIAMS, Petitioner,
STATE OF FLORIDA, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Alleging Ineffectiveness of Appellate Counsel, A Case of
Bradley A. Williams, Malone, pro se.
Jo Bondi, Attorney General, Tallahassee, and Allison Leigh
Morris, Assistant Attorney General, Daytona Beach, for
Williams timely petitions this court pursuant to Florida Rule
of Appellate Procedure 9.141(d), alleging ineffective
assistance of his appellate counsel on direct appeal. For the
following reasons, we grant the petition.
relevant facts in this case are not in dispute. Williams
entered into a plea agreement with the State to resolve his
criminal case. The trial court accepted Williams's plea
and sentenced him consistently with the agreement. Williams
thereafter timely filed a motion to withdraw his plea
pursuant to Florida Rule of Criminal Procedure
3.170(l), which raised in part issues with his
counsel's representation. Williams also filed two
separate Florida Rule of Criminal Procedure 3.850 motions
seeking postconviction relief.The trial court summarily denied all three
motions in one omnibus order, which Williams timely appealed.
We affirmed the order and Williams's judgment and
sentences without opinion. Williams v. State, 158
So.3d 607 (Fla. 5th DCA 2015).
instant petition, Williams argues that his appellate counsel
was ineffective for failing to raise the following two issues
on appeal: (1) the trial court erred in summarily denying his
motion for postconviction relief without first allowing him
an opportunity to amend his motion; and (2) the trial court
erred in ruling on his rule 3.850 motions for postconviction
relief because it lacked "jurisdiction."
"[T]he criteria for proving ineffective assistance of
appellate counsel parallel the
Strickland standard for
ineffective trial counsel." Rutherford v.
Moore, 774 So.2d 637, 643 (Fla. 2000) (quoting
Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.
1985)). To be entitled to relief, a petitioner, such as
Williams, must satisfy the following two-pronged test: (1)
"that appellate counsel's performance was
deficient because 'the alleged omissions are of
such magnitude as to constitute a serious error or
substantial deficiency falling measurably outside the range
of professionally acceptable performance'"; and (2)
"that the petitioner was prejudiced because
appellate counsel's deficiency 'compromised the
appellate process to such a degree as to undermine confidence
in the correctness of the result.'" Id.
(quoting Thompson v. State, 759 So.2d 650, 660 (Fla.
explain our resolution of this case, we first briefly examine
the interplay between rules 3.170(l) and 3.850. A
timely rule 3.170(l) motion to withdraw plea, as was
filed here, defers or delays rendition of the judgment and
sentence until the trial court files a signed, written order
disposing of the motion. Wilson v. State, 128 So.3d
898, 899 (Fla. 4th DCA 2013) (citing Fla. R. App. P.
9.020(i)(1)); Haber v. State, 961 So.2d 1098, 1099
(Fla. 2d DCA 2007) (citations omitted); Smallwood v.
State, 911 So.2d 849, 850 (Fla. 1st DCA 2005) (citations
omitted). Rule 3.850(b) provides, in pertinent part, that
"[a] motion to vacate a sentence that exceeds the limits
provided by law may be filed at any time. No other motion
shall be filed or considered pursuant to this rule if filed
more than 2 years after the judgment and sentence become
final . . . ." Fla. R. Crim. P. 3.850(b). "Implicit
in the rule is the requirement that the judgment and sentence
be final before the motion is filed." Brigham v.
State, 950 So.2d 1274, 1275 (Fla. 2d DCA 2007). Thus,
rule 3.850 sequentially infers that once a timely rule
3.170(l) motion is filed, it must be first ruled
upon by the trial court before a rule 3.850 motion can be
filed or addressed. Therefore, the earliest that a defendant
may properly file a rule 3.850 motion would be thirty-one
days after rendition of the judgment and sentence or, when a
post-judgment motion that suspends rendition of the judgment
and sentence is filed (such as a rule 3.170(l)
motion to withdraw plea), thirty-one days after the trial
court enters the order disposing of the post-judgment motion.
See Mingo v. State, 790 So.2d 1164 (Fla. 2d DCA
2001) (stating that a judgment and sentence becomes final for
purposes of the two-year period for filing a rule 3.850
motion for postconviction relief when the thirty-day period
for filing an appeal expires).
to the present case, once Williams filed his motion to
withdraw plea, rendition of his judgment and sentences was
suspended, and thus, they were not final. Therefore,
Williams's two rule 3.850 motions, filed prior to the
court ruling on his motion to withdraw plea, were premature.
Although Williams inartfully couches his argument as the
court lacking jurisdiction to rule on these motions,
substantively, Williams asserts that the court should not
have determined his rule 3.850 motions. We agree. The circuit
court should have dismissed the two rule 3.850 motions
without prejudice, rather than denying them on the merits,
because the judgment and sentences were not and could not
have been final. See Wilson, 128 So.3d at 899;
Haber, 961 So.2d at 1098; see also Camon v.
State, 57 So.3d 972, 974 (Fla. 3d DCA 2011) (holding
that it is improper to consider a rule 3.850 motion before
the underlying judgment is final). Applying the two-pronged
Strickland test, appellate counsel's performance
was deficient by not raising this issue on direct appeal, and
if the issue had been raised, the result of Williams's
appeal would have been different. See Camon, 57
So.3d at 973-74 (reversing an order denying a rule 3.850
motion contemporaneously entered with a separate order
denying a rule 3.170(l) motion because the trial
court prematurely considered and adjudicated the rule 3.850
motion before the judgment and sentence had become final).
we grant Williams's petition, and because we conclude
that a second appeal would be unnecessary and repetitive, we
remand with directions that the circuit court vacate that
portion of the omnibus order that denied Williams's two
rule 3.850 motions and enter an order dismissing the motions,
without prejudice to Williams to file a rule 3.850 motion
within two years of the issuance of the mandate in this case,
if he can do so in good faith. The filing of this motion shall not be
considered as successive or untimely.
GRANTED, with directions.
SAWAYA, EVANDER, and ...