         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED

BRADLEY A. WILLIAMS,

              Petitioner,

 v.                                                     Case No. 5D16-3798

STATE OF FLORIDA,

           Respondent.
________________________________/

Opinion filed April 7, 2017

Petition Alleging Ineffectiveness of
Appellate Counsel,
A Case of Original Jurisdiction.

Bradley A. Williams, Malone, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison Leigh Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

       Bradley Williams timely petitions this court pursuant to Florida Rule of Appellate

Procedure 9.141(d), alleging ineffective assistance of his appellate counsel on direct

appeal. For the following reasons, we grant the petition.

       The relevant facts in this case are not in dispute. Williams entered into a plea

agreement with the State to resolve his criminal case. The trial court accepted Williams’s

plea and sentenced him consistently with the agreement. Williams thereafter timely filed

a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l),
which raised in part issues with his counsel’s representation. Williams also filed two

separate Florida Rule of Criminal Procedure 3.850 motions seeking postconviction relief. 1

The trial court summarily denied all three motions in one omnibus order, which Williams

timely appealed. We affirmed the order and Williams’s judgment and sentences without

opinion. Williams v. State, 158 So. 3d 607 (Fla. 5th DCA 2015).

       In the instant petition, Williams argues that his appellate counsel was ineffective

for failing to raise the following two issues on appeal: (1) the trial court erred in summarily

denying his motion for postconviction relief without first allowing him an opportunity to

amend his motion; and (2) the trial court erred in ruling on his rule 3.850 motions for

postconviction relief because it lacked “jurisdiction.” “[T]he criteria for proving ineffective

assistance of appellate counsel parallel the Strickland 2 standard for ineffective trial

counsel.” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (quoting Wilson v.

Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985)). To be entitled to relief, a petitioner, such

as Williams, must satisfy the following two-pronged test: (1) “that appellate counsel’s

performance was deficient because ‘the alleged omissions are of such magnitude as to

constitute a serious error or substantial deficiency falling measurably outside the range

of professionally acceptable performance’”; and (2) “that the petitioner was prejudiced

because appellate counsel’s deficiency ‘compromised the appellate process to such a

degree as to undermine confidence in the correctness of the result.’”             Id. (quoting

Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000)).




       1   All three motions were filed by Williams without counsel.
       2   Strickland v. Washington, 466 U.S. 668 (1984).


                                              2
      Accordingly, we grant Williams’s petition, and because we conclude that a second

appeal would be unnecessary and repetitive, we remand with directions that the circuit

court vacate that portion of the omnibus order that denied Williams’s two rule 3.850

motions and enter an order dismissing the motions, without prejudice to Williams to file a

rule 3.850 motion within two years of the issuance of the mandate in this case, if he can

do so in good faith. 4 The filing of this motion shall not be considered as successive or

untimely.

      PETITION GRANTED, with directions.

SAWAYA, EVANDER, and LAMBERT, JJ., concur.




      4   Our resolution of this issue renders moot Williams’s first argument in his petition.


                                               5
a rule 3.850 motion for postconviction relief when the thirty-day period for filing an appeal

expires). 3

       Returning to the present case, once Williams filed his motion to withdraw plea,

rendition of his judgment and sentences was suspended, and thus, they were not final.

Therefore, Williams’s two rule 3.850 motions, filed prior to the court ruling on his motion

to withdraw plea, were premature. Although Williams inartfully couches his argument as

the court lacking jurisdiction to rule on these motions, substantively, Williams asserts that

the court should not have determined his rule 3.850 motions. We agree. The circuit court

should have dismissed the two rule 3.850 motions without prejudice, rather than denying

them on the merits, because the judgment and sentences were not and could not have

been final. See Wilson, 128 So. 3d at 899; Haber, 961 So. 2d at 1098; see also Camon

v. State, 57 So. 3d 972, 974 (Fla. 3d DCA 2011) (holding that it is improper to consider a

rule 3.850 motion before the underlying judgment is final). Applying the two-pronged

Strickland test, appellate counsel’s performance was deficient by not raising this issue on

direct appeal, and if the issue had been raised, the result of Williams’s appeal would have

been different. See Camon, 57 So. 3d at 973-74 (reversing an order denying a rule 3.850

motion contemporaneously entered with a separate order denying a rule 3.170(l) motion

because the trial court prematurely considered and adjudicated the rule 3.850 motion

before the judgment and sentence had become final).




       3 The time to file a rule 3.850 motion would be further delayed if, as occurred in the
underlying case, a defendant appeals the judgment and sentence after the denial of the
motion to withdraw plea. See Jones v. State, 602 So. 2d 606, 607-08 (Fla. 1st DCA 1992)
(“[A] judgment and sentence become final for purposes of filing a motion for post-
conviction relief when appellate proceedings have concluded, i.e., upon issuance of the
mandate.” (citations omitted)).


                                             4
      Accordingly, we grant Williams’s petition, and because we conclude that a second

appeal would be unnecessary and repetitive, we remand with directions that the circuit

court vacate that portion of the omnibus order that denied Williams’s two rule 3.850

motions and enter an order dismissing the motions, without prejudice to Williams to file a

rule 3.850 motion within two years of the issuance of the mandate in this case, if he can

do so in good faith. 4 The filing of this motion shall not be considered as successive or

untimely.

      PETITION GRANTED, with directions.

SAWAYA, EVANDER, and LAMBERT, JJ., concur.




      4   Our resolution of this issue renders moot Williams’s first argument in his petition.


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