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Rua-Torbizco v. State

Florida Court of Appeals, Third District

December 13, 2017

Oscar Rua-Torbizco, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County Lower Tribunal No. 13-7027A, Veronica A. Diaz, Judge.

          Oscar Rua-Torbizco, in proper person.

          Pamela Jo Bondi, Attorney General, for appellee.

          Before SALTER, EMAS and LOGUE, JJ.

          EMAS, J.

          Rua-Torbizco appeals from the trial court's order denying his motion for leave to file a second motion under Florida Rule of Criminal Procedure 3.850. We affirm, without prejudice, and set forth the reasons for our decision.

         On June 7, 2016, Rua-Torbizco filed his first pro se postconviction motion. The trial court denied the motion, and Rua-Torbizco appealed that denial order, which is currently pending in this court. Rua-Torbizco v. State, 3D17-1595.

         On September 6, 2017, and while that appeal was pending, Rua-Torbizco filed with the trial court his motion for leave to file a second 3.850 motion. In the motion for leave, Rua-Torbizco asserts that he does not read or speak English, was not aware of the contents of his first motion (allegedly written by a fellow inmate), [1] and that he would like to raise additional 3.850 issues. It should be noted that, at the time his motion for leave was filed, Rua-Torbizco was still within the two-year window for the timely filing of a motion for postconviction relief. See Fla. R. Crim. P. 3.850(b)[2] (establishing a general two-year time limitation for motions filed pursuant to rule 3.850).

         On September 28, 2017, the trial court entered an order summarily denying the motion for leave without elaboration, which is the order on appeal before us.

         This court held in Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966), that once the notice of appeal of the order denying the first motion for postconviction relief has been filed, the trial court is without jurisdiction to consider the second motion for postconviction relief while that appeal remains pending. This appears to remain the law in our district, and is supported by the Florida Supreme Court's decision in State v. Meneses, 392 So.2d 905 (Fla. 1981), holding that "while appeal proceedings or certiorari proceedings are pending in an appellate court, the trial court is without jurisdiction to entertain a motion to vacate."[3]

          The instant case differs slightly from Gobie in that the trial court in the instant case did not actually "entertain a motion to vacate, " as no motion to vacate had yet been filed. Instead, the trial court merely ruled upon and denied the defendant leave to file a second motion.

         While, under Gobie and Meneses, the trial court was without jurisdiction to entertain and rule upon the motion to vacate until the first appeal was resolved, surely the defendant was authorized to file the second motion for postconviction relief. What the trial court could have done (instead of simply denying the motion for leave) was to permit Rua-Torbizco to file the motion (Rua-Torbizco did not require the trial court's permission to file the motion in any event), and hold the motion in abeyance to await the outcome of the first appeal before proceeding on the second motion or ruling on its legal sufficiency, timeliness, or merits.

         We note that the Florida Supreme Court has held that a trial court has the authority to dismiss (for lack of jurisdiction) a second 3.850 motion while an appeal is pending on a prior 3.850 motion. Tompkins v. State, 894 So.2d 857 (Fla. 2005). In doing so, however, the Tompkins Court recognized that a dismissal of the second motion could unintentionally result in a defendant being time-barred ...


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