Opinion
Case No. 4D02-329.
Opinion filed June 19, 2002.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. Case No. 99-22372 CF10.
Terrance Washington, Blountstown, pro se.
No appearance required for appellee.
After a plea of no contest appellant was sentenced in December, 2000. In February, 2001, he moved under rule 3.850 to vacate his plea on grounds he was coerced by counsel and that counsel was incompetent in several ways. The trial court denied the motion and appellant appealed to this court.
While that appeal was pending appellant filed another rule 3.850 motion alleging ineffective assistance of counsel on grounds which were different than the ineffective assistance grounds of the first motion. The trial court dismissed the second motion, concluding that it lacked jurisdiction to rule on that motion while the order denying the earlier motion was pending in this court. Appellant appeals that order.
In Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978), we held that the trial court could not rule on a second post-conviction motion to vacate a conviction, while an appeal was pending in this court from an order denying an earlier motion to vacate based on different grounds. See also Lee v. State, 392 So.2d 913 (Fla. 1st DCA 1980) (trial court had no jurisdiction to rule on second 3.850 motion where an order denying a prior 3.850 motion seeking relief on different grounds was on appeal);Hulick v. State, 644 So.2d 117 (Fla. 2d DCA 1994).
The proposition that an appeal of an order denying a rule 3.850 motion prevents the trial court from ruling on a second 3.850 motion is based on the principle that a trial court has no power to rule on an issue which would interfere with the authority of the appellate court. Norman v. State, 739 So.2d 1258 (Fla. 1st DCA 1999); Crichlow v. Equitable Life Assur. Soc. of U.S., 152 So. 849 (Fla. 1933).
In Wells, we characterized the trial court's order on the second motion as a nullity, which would indicate lack of subject matter jurisdiction; however, subject matter jurisdiction is the power of a court to hear that type of case. Quigley v. Cremin, 113 So. 892 (Fla. 1927). An order from a court which lacks jurisdiction of the subject matter is void, while an order from a court which erroneously exercises its jurisdiction is voidable, i.e., subject to reversal on appeal.Quigley. Neither Wells nor this case involves subject matter jurisdiction.
In Norman, the first district held that a trial court could rule on a 3.850 motion while an appeal was pending from a 3.800 motion, because the grounds in the 3.850 motion were not related in any way to the motion challenging the sentence. The present case is distinguishable fromNorman and is controlled by Wells.
Appellant's appeal of the denial of his first post-conviction motion has been affirmed, so that the trial court is no longer precluded from ruling on his second motion. Although the trial court did not err in dismissing the second motion for lack of jurisdiction, we conclude that, because of the two year period of limitations for filing a rule 3.850 motion, the better procedure would be to stay the second motion under these circumstances. We accordingly reverse and remand for consideration of the second motion.
The second motion may constitute an abuse of the process because it does not allege that the grounds asserted in the second motion "were not known and could not have been known" to appellant when he filed the first motion. Foster v. State, 614 So.2d 455, 458 (Fla. 1992).
GUNTHER and WARNER, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.