Third District Court of Appeal
State of Florida
Opinion filed December 13, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2293
Lower Tribunal No. 13-7027A
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Oscar Rua-Torbizco,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, 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
1We note that this is a meritless position. See Fla. R. Crim. P. 3.850(n)(1) and (2),
which provide:
(1) By signing a motion pursuant to this rule, the defendant certifies
that: the defendant has read the motion or that it has been read to the
defendant and the defendant understands its content; the motion is
filed in good faith and with a reasonable belief that it is timely filed,
has potential merit, and does not duplicate previous motions that have
been disposed of by the court; and, the facts contained in the motion
are true and correct.
(2) The defendant shall either certify that the defendant can
understand English or, if the defendant cannot understand English,
that the defendant has had the motion translated completely into a
language that the defendant understands. The motion shall contain the
name and address of the person who translated the motion and that
person shall certify that he or she provided an accurate and complete
translation to the defendant. Failure to include this information and
certification in a motion shall be grounds for the entry of an order
dismissing the motion pursuant to subdivision (f)(1), (f)(2), or (f)(3).
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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
2 That rule 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. . . .” Rua-Torbizco’s judgment and sentence
became final on December 4, 2015, when the mandate issued on his direct appeal
in 3D14-2647, and he therefore had until December 4, 2017 to file a timely motion
under rule 3.850.
3 More recent decisions from our sister courts have held that the trial court has
concurrent jurisdiction to address a second 3.850 motion raising issues unrelated to
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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
those presented in the first motion that is the subject of a pending appeal. See, e.g.,
Siskos v. State, 163 So. 3d 739 (Fla. 5th DCA 2015); Bryant v. State, 102 So. 3d
660 (Fla. 2d DCA 2012); Jackman v. State, 88 So. 3d 325 (Fla. 4th DCA
2012). This panel is bound by this court’s prior decision in Gobie on the
jurisdictional question, but we suggest that the unintended consequence (i.e., a
procedural bar) which could follow from a trial court’s order dismissing a second
motion for lack of jurisdiction may easily be avoided by simply abating the second
motion until the conclusion of the appeal from the order on the first motion.
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the second motion could unintentionally result in a defendant being time-barred
from filing his second motion if he has to await the outcome of the appeal of the
order denying his first motion:
We recognize that due to this Court's denial of Tompkins' motion to
relinquish, a procedural dilemma now arises because Tompkins is
time-barred from filing a new postconviction motion raising his newly
discovered evidence claims. See Glock v. Moore, 776 So. 2d 243, 251
(Fla. 2001). (“[A]ny claim of newly discovered evidence in a death
penalty case must be brought within one year of the date such
evidence was discovered or could have been discovered through the
exercise of due diligence.”). Accordingly, although we affirm the trial
court's order, we conclude that Tompkins should be permitted 60 days
to refile his successive postconviction motion nunc pro tunc to
February 5, 2003, the date his prior motion was filed in the trial court.
To avoid this procedural dilemma in the future, we conclude that if an
appeal is pending in a death penalty case and this Court denies a
motion to relinquish jurisdiction for the trial court to consider a new
claim, the trial court should hold any successive postconviction
motion in abeyance until the appeal process is completed.
Id. at 859-860 (emphasis added.)
It seems to us that this same reasoning should apply to motions for
postconviction relief in non-capital cases as well. This rationale has been
acknowledged by our sister courts. See, e.g., Bryant v. State, 102 So. 3d 660 (Fla.
2d DCA 2012) (recognizing that, by accepting the filing of the second motion
while an appeal is pending on the first motion, “the postconviction court has
protected the defendant from the risk of procedural default under the two-year time
limit”); Jackman v. State, 88 So. 3d 325 (Fla. 4th DCA 2012).
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We therefore affirm the trial court’s denial of Rua-Torbizco’s motion for
leave to file a second 3.850 motion, without prejudice to the filing of a second
motion for postconviction relief within sixty days from the date of issuance of this
opinion. If filed within that sixty-day period, the motion shall be deemed filed
nunc pro tunc to September 7, 2017 (the date Rua-Torbizco filed his motion for
leave). The trial court shall hold this second motion in abeyance until the
conclusion of the pending appeal in 3D17-1595, after which the trial court may
entertain the motion.
Affirmed without prejudice and remanded with directions.
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