       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 1, 2019.

                              ________________

                               No. 3D18-2230
                         Lower Tribunal No. 09-40014
                             ________________


                             Bernard Gyden, II,
                                   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, Spencer J. Multack, Judge.

      Bernard Gyden, II, in proper person.

     Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.


Before EMAS C.J., and SCALES and MILLER, JJ.

      PER CURIAM.
                         ON CONFESSION OF ERROR

      Bernard Gyden, II appeals the trial court’s order dismissing his amended

motion for postconviction relief, filed pursuant to Florida Rule of Criminal

Procedure 3.850. Because Gyden’s petition for writ of habeas corpus (alleging

ineffective assistance of appellate counsel) was pending before this Court at the

same time, the trial court concluded it lacked jurisdiction to entertain or adjudicate

Gyden’s motion for postconviction relief, and dismissed the motion.

      As the State properly and commendably concedes, the trial court erred

because it did have jurisdiction to consider Gyden’s motion for postconviction

relief even while there remained pending before this Court an original proceeding

asserting a claim of ineffective assistance of appellate counsel. As the Florida

Supreme Court said:

      In Knight v. State, 394 So. 2d 997 (Fla. 1981), we recognized that
      allegations of ineffectiveness of appellate counsel are not
      cognizable under a Rule 3.850 motion because they do not relate
      to anything done by or transpiring before the trial court. Such
      allegations, we held, should be addressed to the appellate court by
      means of a petition for habeas corpus. On the other hand,
      allegations of ineffectiveness of legal counsel at one’s trial are
      properly presented to the trial court by a Rule 3.850 motion. Since
      the two judicial attacks on petitioner’s convictions and sentences . .
      . were thus separate and distinct, there was no danger . . . of
      conflicting and confusing rulings by different courts on the same
      issues . . . . We do not perceive so substantial a problem of
      confusion as to require us to hold that the pendency of one kind
      of proceeding deprives the other court of jurisdiction to proceed.



                                          2
Francois v. Klein, 431 So. 2d 165, 166 (Fla. 1983) (emphasis added) (internal

citations omitted). See also Reidy v. State, 30 So. 3d 705 (Fla. 5th DCA 2010);

Evans v. State, 962 So. 2d 938 (Fla. 3d DCA 2007); White v. State, 855 So. 2d 723

(Fla. 3d DCA 2003); Gawronski v. State, 801 So. 2d 211 (Fla. 2d DCA 2001).


      We reverse and remand for the trial court to address and, as appropriate, to

adjudicate Gyden’s amended motion for postconviction relief.




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