Evans v. State

962 So. 2d 938, 2007 Fla. App. LEXIS 10962, 2007 WL 2043475

Opinion

FLETCHER, J.

Kanisky Evans seeks to reverse a final order of the trial court striking his post-conviction petition for lack of jurisdiction. We reverse.

In July, 2006, Kanisky Evans filed a petition in this court for writ of habeas corpus claiming ineffective assistance of appellate counsel, Case Number 3D06-17331. In November, 2006, Evans filed a post-conviction petition pursuant to Florida Rule of Criminal Procedure 3.850 in the trial court, arising out of the same underlying case and alleging ineffective assistance of trial counsel, Case Number 3D07-280, the petition now before us. The trial court struck the Rule 3.850 motion for lack of jurisdiction, believing that it was without jurisdiction to entertain the motion while the habeas corpus petition was pending in this court. However, the trial court should not have dismissed the 3.850 motion because the two claims are separate and distinct and may proceed simultaneously. See White v. State, 855 So.2d 723 (Fla. 3d DCA 2003).

We therefore reverse the order below striking the defendant’s motion for post-conviction relief and remand for the trial court to reinstate and consider the merits of the petition.

Reversed and remanded.

1 . As of this writing, the petition for habeas corpus, Case No. 3D06-1733, is still pending before this court.