Supreme Court of Florida

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No. SC03-1902

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Appellant,

vs.

Appellee.

[January 20, 2005]

PER CURIAM.

Wayne Tompkins, a prisoner under sentence of death, appeals an order of

the circuit court dismissing, for lack of jurisdiction, his February 5, 2003,

successive motion for postconviction relief filed under Florida Rule of Criminal

Procedure 3.850, and his February 3, 2003, motion for postconviction DNA testing

filed under Florida Rule of Criminal Procedure 3.853. We have jurisdiction. See

art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the trial court’s

order but grant Tompkins 60 days to refile his successive postconviction motion

nunc pro tunc to February 5, 2003.

FACTS AND PROCEDURAL HISTORY

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In 1985, Tompkins was convicted of the first-degree murder of Lisa DeCarr

and was sentenced to death on the recommendation of a unanimous jury. The facts

of this case are fully set forth in this Court’s opinion on Tompkins’ direct appeal,

in which we affirmed Tompkins’ conviction and death sentence. See Tompkins v.

State, 502 So. 2d 415, 421 (Fla. 1986) (Tompkins I). This Court subsequently

affirmed the denial of Tompkins’ initial motion for postconviction relief and

denied his state habeas petition. See Tompkins v. Dugger, 549 So. 2d 1370, 1373

(Fla. 1989) (Tompkins II). The United States Court of Appeals for the Eleventh

Circuit affirmed the denial of federal habeas corpus relief. See Tompkins v.

Moore, 193 F.3d 1327, 1329 (11th Cir. 1999) (Tompkins III).

On March 22, 2001, Governor Bush signed Tompkins’ third death warrant,

which resulted in Tompkins filing a second postconviction motion in state court.

In this motion Tompkins asserted, among other claims, that the State failed to

disclose favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),

that demonstrated that three witnesses’ testimony and the State’s closing

arguments were false in violation of Giglio v. United States, 405 U.S. 150 (1972).

both of these issues and this Court affirmed. See Tompkins v. State, 872 So. 2d

230 (Fla. 2003) (Tompkins IV). This Court’s decision in Tompkins IV became

1. This motion was filed before this Court promulgated rule 3.853.

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final on June 25, 2004.

In August 2002, while his latest appeal to this Court was pending, Tompkins

filed a motion to relinquish jurisdiction to allow the circuit court to consider a

claim based on new evidence disclosed by the State in 2001 and 2002. This Court

denied the motion. Tompkins then filed another successive postconviction motion

in the trial court, alleging new evidence to support his Brady and Giglio claims,

and a motion under rule 3.853, seeking to obtain DNA testing on the remains

identified as belonging to the victim. The circuit court dismissed both motions,

finding that it lacked jurisdiction due to the pending appeal. Tompkins now

appeals the dismissal of his successive postconviction motion and motion for

Both Tompkins and the State agree that the circuit court did not have

jurisdiction to consider Tompkins’ motions while the appeal of the denial of his

previous motions, which raised similar claims, was pending in this Court. Cf.

Daniels v. State 712 So. 2d 765, 765 (Fla. 1998) (reiterating that “during the

pendency of a defendant’s direct appeal, the trial court is without jurisdiction to

rule on a motion for postconviction relief”); State v. Meneses, 392 So. 2d 905, 907

2. Tompkins also raises several additional issues in his appeal related to the

merits of the claims raised in the 3.850 motion. However, he admits that the

dismissal is the only issue properly before the Court. Accordingly, we do not

address these other issues.

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(Fla. 1981) (holding that “while appeal proceedings or certiorari proceedings are

pending in an appellate court, the trial court is without jurisdiction to entertain a

motion to vacate”). However, Tompkins argues that the circuit court erred when it

entered an order of dismissal. Tompkins asserts that because the trial court lacked

jurisdiction over the 3.850 and 3.853 motions, it lacked the jurisdiction to enter an

order of dismissal. We conclude that Tompkins’ argument is without merit.

Dismissal is an appropriate remedy when a court lacks jurisdiction. See, e.g., R.J.

Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986, 988 (Fla. 2004) (“We dismiss

the petition because this Court lacks jurisdiction to review the district court of

appeal’s order.”); Gandy v. State, 846 So. 2d 1141, 1142 (Fla. 2003) (“We

consolidate these cases for purposes of this opinion and, for the reasons expressed

below, dismiss these cases for lack of jurisdiction.”); Grate v. State, 750 So. 2d 625

(Fla. 1999) (dismissing “Grate’s mandamus petition for lack of jurisdiction”). The

trial court did not act outside its jurisdiction in dismissing Tompkins’ motions.

We recognize that due to this Court’s denial of Tompkins’ motion to

relinquish, a procedural dilemma now arises because Tompkins is time-barred

from filing a new postconviction motion raising his newly discovered evidence

claims. See Glock v. Moore, 776 So. 2d 243, 251 (Fla. 2001) (“[A]ny claim of

newly discovered evidence in a death penalty case must be brought within one year

of the date such evidence was discovered or could have been discovered through

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order, we conclude that Tompkins should be permitted 60 days to refile his

successive postconviction motion nunc pro tunc to February 5, 2003, the date his

prior motion was filed in the trial court. To avoid this procedural dilemma in the

future, we conclude that if an appeal is pending in a death penalty case and this

Court denies a motion to relinquish jurisdiction for the trial court to consider a new

claim, the trial court should hold any successive postconviction motion in

abeyance until the appeal process is completed.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, CANTERO, and BELL, JJ.,

concur.

QUINCE, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Hillsbourgh County,

Daniel L. Perry, Judge - Case No. 84-10538

Martin J. McClain, Special Assistant, Office of the Capital Collateral Regional

Counsel – South, Wilton Manors, Florida,

for Appellant

3. On September 15, 2004, this Court amended rule 3.853(d)(1)(A) to

extend the deadline for filing motions for postconviction DNA testing from

October 1, 2003, to October 1, 2005. See Amendments to Florida Rule of

Criminal Procedure 3.853(d)(1)(A) (Postconviction DNA Testing), 884 So. 2d 934

(Fla. 2004).

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Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Robert J. Landry,

Assistant Attorney General, Tampa, Florida,

for Appellee