KANISKY EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The trial court erred in striking a post-conviction petition for lack of jurisdiction while a habeas corpus petition was pending.
Kanisky Evans filed a petition for writ of habeas corpus and a separate post-conviction petition alleging ineffective assistance of counsel. The trial…
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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 3D06-1733
. 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.
. As of this writing, the petition for habeas corpus, Case No. 3D06-1733, is still pending before this court.
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Gyden II v. State, 273 So. 3d 1094 (Fla. 3d DCA 2019)…of proceeding deprives the other court of jurisdiction to proceed. 2 Francois v. Klein, 431 So. 2d 165, 166 (Fla. 1983) (emphasis added) (internal citations omitted). See also Reidy v. State, 30 So. 3d 705 (Fla. 5th DCA 2010); Evans v. State, 962 So. 2d 938 (Fla. 3d DCA 2007); White v. State, 855 So. 2d 723 (Fla. 3d DCA 2003); Gawronski v. State, 801 So. 2d 211 (Fla. 2d DCA 2001). We reverse and remand for the trial court to address and, as appropriate, to adjudicate Gyden’s amended motion for postco…
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