final until disposition of timely filed motion for rehearing.
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.
Rua-Torbizco, in proper person.
Jo Bondi, Attorney General, for appellee.
SALTER, EMAS and LOGUE, JJ.
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.
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.
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),  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) (establishing a general two-year time
limitation for motions filed pursuant to rule 3.850).
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.
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
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
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.
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 ...