Rua-Torbizco v. State
237 So. 3d 1065
| Fla. Dist. Ct. App. | 2017Background
- Rua-Torbizco filed a pro se Rule 3.850 postconviction motion on June 7, 2016; the trial court denied it and he appealed (3D17-1595), appeal pending.
- While that appeal was pending, on September 6, 2017, Rua-Torbizco filed a motion for leave to file a second 3.850 motion, asserting lack of English proficiency and that he hadn’t seen the first motion.
- The trial court summarily denied leave to file the second motion on September 28, 2017. Rua-Torbizco appealed that denial.
- At the time of the leave request, the two-year limitations period under Fla. R. Crim. P. 3.850(b) had not yet expired (judgment became final Dec. 4, 2015; deadline Dec. 4, 2017).
- This district’s precedent (Gobie) and Florida Supreme Court precedent (Meneses) hold that while an appeal of a first postconviction motion is pending the trial court lacks jurisdiction to entertain a second motion challenging the same judgment.
- The appellate panel affirmed the denial of leave but allowed Rua-Torbizco 60 days to file a second 3.850 motion nunc pro tunc to Sept. 7, 2017, and directed the trial court to hold that motion in abeyance until resolution of the pending appeal.
Issues
| Issue | Rua-Torbizco's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial court had jurisdiction to consider or permit filing of a second 3.850 motion while appeal of first motion was pending | He sought leave to file a second motion; argued need to raise additional claims and asserted language barrier | Trial court relied on precedent that it lacked jurisdiction to entertain a second motion while first-motion appeal was pending and denied leave | Court affirmed denial of leave but noted defendant could still file second motion; trial court should hold it in abeyance until appeal resolves |
| Whether defendant’s asserted inability to read English excused procedural certification requirements | Claimed he did not read/understand English and didn’t personally prepare the first motion | State pointed to rule 3.850(n) requiring certification or certified translation; argued claim meritless procedurally | Court rejected the contention as meritless and cited rule 3.850(n) requirements |
| Whether dismissal/denial of second motion while appeal pending can cause time-bar prejudice | Argued need to protect against procedural default due to statute of limitations | State relied on jurisdictional precedent permitting dismissal for lack of jurisdiction | Court recognized procedural prejudice risk and directed relief: permit refiling within 60 days nunc pro tunc to the leave filing date and hold motion in abeyance |
| Proper remedy when second motion is filed while appeal of first is pending | Requested leave to file or that court accept and adjudicate claims | State maintained trial court may deny or dismiss for lack of jurisdiction | Court held trial court should accept and abate the second motion (or allow refiling nunc pro tunc) to avoid time-bar; affirmed denial of leave without prejudice and remanded with directions |
Key Cases Cited
- Gobie v. State, 188 So. 2d 34 (Fla. 3d DCA 1966) (trial court without jurisdiction to consider second postconviction motion while appeal of first is pending)
- State v. Meneses, 392 So. 2d 905 (Fla. 1981) (while appellate proceedings are pending, trial court lacks jurisdiction to entertain motion to vacate)
- Tompkins v. State, 894 So. 2d 857 (Fla. 2005) (trial court may dismiss successive 3.850 motions for lack of jurisdiction, but appellate court may permit nunc pro tunc refiling to avoid time-bar)
- Glock v. Moore, 776 So. 2d 243 (Fla. 2001) (limitations for newly discovered evidence claims; illustrates risk of procedural default if refiling deadlines pass)