Sharrod Dunston v. State of Florida

193 So. 3d 1066, 2016 WL 3268544, 2016 Fla. App. LEXIS 9261

• Court: District Court of Appeal of Florida
• Decided: June 15, 2016
• Docket: 4D15-4469
• Status: Published

Opinion

ON CONCESSION OF ERROR

PER CURIAM.

Sharrod Dunston appeals the summary denial of his rule 3.850 motion and the order denying his motion for rehearing. The motion raised issues of involuntary plea and. ineffective assistance of counsel in connection with the plea he entered in four lower tribunal cases, pursuant to which he was sentenced to a jail term followed by probation. The circuit court denied the rule 3.850 motion after considering and incorporating a state response. The state argued only that the circuit court did not have jurisdiction to consider the rule 3.850 motion because Dunston then had a direct appeal pending in this court. The direct appeal challenged the subsequent revocation of his probation. 1

The state now concedes the' circuit court should have considered the merits of the rule 3.850 motion. We accept the state’s concession of error and reverse and remand for further proceedings. See Lindsay v. State, 842 So.2d 1057, 1059 (Fla. 4th DCA 2003) (reversing dismissal of rule 3.850 motion and holding a trial court has jurisdiction to consider a postconviction motion addressed to the defendant’s initial conviction, notwithstanding that an appeal is pending from a subsequent violation of probation); Harris v. State, 939 So.2d 197 (Fla. 5th DCA 2006) (reversing order striking rule 3.850 motion directed to original plea; trial court ruled it lacked jurisdiction because appeal was pending from order revoking probation, but appellate court determined the issues of the motion were unrelated to issues on appeal) (citing Lindsay).

Reversed and remanded for further proceedings.

TAYLOR, GERBER and LEVINE', JJ., concur.

1 . The direct appeal, case no. 4D15-1523, has since been dismissed.