Sharrod Dunston v. State of Florida , 193 So. 3d 1066 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SHARROD DUNSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-4469
[June 15, 2016]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton,
Judge; L.T. Case Nos. 502012CF005946BXX, 502012CF007764BXX,
502012CF008040AX, and 502012CF008688AXX.
Sharrod Dunston, Perry, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.
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
1 The direct appeal, case no. 4D15-1523, has since been dismissed.
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.
* * *
Not final until disposition of timely filed motion for rehearing.
2