       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 13, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2293
                         Lower Tribunal No. 13-7027A
                             ________________


                            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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