
    Reinaldo Demetrio MENESES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-183.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Rehearing Denied July 30, 1979.
    Pertnoy & Greenberg and Steven M. Greenberg, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant seeks review, pursuant to Fla.R.App.P. 9.140(g), of the summary denial of his motion for post-conviction relief filed under Fla.R.Crim.P. 3.850. We reverse for an evidentiary hearing.

The defendant had been charged with a lottery-bolita violation in which the primary evidence against him consisted of wiretap evidence of telephone conversations in which he was allegedly involved. After his motion to suppress the wiretap was denied, he entered a nolo plea to the court on January 31, 1977, reserving the right to appeal the denial to this court. During the course of the colloquy, the assistant state attorney, in response to the trial judge’s request for a statement of the factual basis of the plea, stated

“. . .a voice gram was done. The voice print verified the fact MENESES was who was heard on these calls. They were all tape recorded and transcribed. That the facts were that the same voice had made the tape recorded calls was the one who had been on the tape recording earlier. It was compared by Earl Richardson over at the Public Safety Department.”

On March 15, 1977, after reviewing a pre-sentence investigation which recommended a fine and the state’s recommendation of “some substantial time in jail,” the court adjudicated the defendant guilty and sentenced him to two years in the state prison.

Raising only the wiretap suppression issue, Meneses then appealed to this court, which affirmed the judgment and sentence in Cuba v. State, 362 So.2d 29 (Fla.3d DCA 1978). Our mandate to the circuit court issued on September 29, 1978. Subsequently, the defendant sought direct conflict cer-tiorari review of that decision in the Supreme Court of Florida.

On December 6, 1978, while that petition was pending, and without, securing leave to do so from the supreme court, the defendant filed the Rule 3.850 motion now before us in the circuit court. The motion, which was sworn to, alleged that the quoted statement of the prosecutor, made when the plea was taken, was untrue. The defendant alleged that, not only was there no identification of Meneses’ voice as of that time, as stated, but that on February 9, 1977, the P.S.D. expert referred to, Earl Richardson, had written to the assistant state attorney in question that he could not identify Meneses as one of the persons on the tape. The motion also stated that the prosecutor did not correct her misstatement and did not supply the obviously exculpatory contents of the report either to defense counsel or the court before the defendant was sentenced on March 15, 1977. Based primarily on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the motion sought vacation of the judgment and sentence and either the outright dismissal of the information because of prosecutorial misconduct or leave to withdraw the nolo plea and have the case set for trial. The trial judge denied the motion without a hearing, and the defendant has taken this appeal.

The state presents two separate arguments for affirmance of the order below. It is first contended that the circuit court lacked subject matter jurisdiction even to consider the motion because of the penden-cy of the certiorari proceedings in the supreme court. We do not agree. It has indeed been held that a Rule 3.850 motion may not be considered while the judgment from which relief is sought is on direct appeal in the district court of appeal. Barton v. State, 193 So.2d 627 (Fla.2d DCA 1966); Grizzell v. State, 187 So.2d 342 (Fla.lst DCA 1966). While we have no occasion here to consider the propriety of these decisions, there is no reason why the rule they announce should be applicable to this situation, in which this court’s appellate jurisdiction over the case terminated upon the issuance of the mandate, 3 Fla.Jur.2d Appellate Review § 31 (1978), cf. Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977). By its own terms, a motion for relief under Rule 3.850, which is an entirely collateral proceeding which does not affect the finality or enforceability of the underlying judgment, see, e. g., Heilmann v. State, 310 So.2d 376 (Fla.2d DCA 1975), cf. Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), “may be made at any time.” We see no juridical, conceptual, or even administrative basis for declining to entertain such a motion merely because of the pendency of an application for the purely discretionary issuance of a writ of certio-rari by the supreme court. See Duzinski v. American Baseball Cap, Inc., 366 So.2d 443 (Fla.1979).

On the merits, the state, citing Hand v. State, 334 So.2d 601 (Fla.1976), and Peel v. State, 150 So.2d 281 (Fla.2d DCA 1963), argues that the alleged misstatements and suppressions of the prosecutor were in effect irrelevant since they followed the nolo plea and were apparently unrelated to its entry. We hold otherwise for two reasons. In the first place, the allegations of the motion raise a real question, which should be explored in an evidentiary hearing, as to whether the state had knowledge of the contents of the expert’s report before the plea, when, under Brady, it had a duty to reveal it which is unquestioned even by the state. Annot., Withholding Evidence by Prosecution, 34 A.L.R.3d 16 (1970). Secondly, Brady specifically holds, at 373 U.S. 87, at 83 S.Ct. 1197, at 10 L.Ed.2d 218, that suppression of favorable evidence

“. . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (emphasis supplied)

Because the strength of the state’s case on the merits is often a very pertinent factor in a trial judge’s sentencing determination, the clear allegation in the motion before us that the favorable evidence became available before the defendant was sentenced therefore requires a hearing for this reason as well. Cf. also State v. Pitts, 249 So.2d 47 (Fla.lst DCA 1971).

Since the record thus does not show “conclusively that the appellant is entitled to no relief,” F.R.App.P. 9.140(g), the order below is reversed and the cause remanded for an evidentiary hearing.

Reversed and remanded.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would affirm the order under review on the ground that the trial court lacked jurisdiction to entertain the defendant’s motion to vacate under the established law of this state.

The defendant at the time he filed his motion to vacate was pursuing his appellate remedies through a petition for writ of certiorari filed in the Florida Supreme Court in which he sought a reversal of this court’s affirmance of his criminal conviction. So long as the defendant continues to pursue such appellate remedies upon direct review of his criminal conviction, it is settled law that the trial court lacks jurisdiction to entertain a motion to vacate the said conviction under Fla.R.Crim.P. 3.850. Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1968); Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966); Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966); Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966). As such, the trial court was eminently correct in summarily denying the defendant’s motion to vacate for lack of jurisdiction.

The orderly administration of justice requires, it seems to me, that the defendant pursue in one court at a time whatever legal remedies he desires to employ in attacking his criminal conviction. While pursuing his appellate remedies, the defendant ought not be allowed to simultaneously seek collateral attack relief in the trial court. Unnecessary confusion and needless expenditure of judicial time and effort are avoided by such a rule. Until today, I had thought that such was the prevailing law on the subject. Now it appears that Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1968), is no longer good law, and Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966); Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966), and Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966), are in serious doubt. I am not persuaded that we should turn an about face on such decisions in favor of a practice which is dubious at best, and, in all likelihood, will lead to considerable confusion and waste of judicial resources.

By the court’s decision herein, a busy trial judge is required to hold an evidentiary hearing on a motion to vacate, which, if denied, will be a complete waste of time and effort should the Florida Supreme Court later grant certiorari in the cause, quash our decision and reverse the defendant’s conviction. On the other hand, if the trial judge grants the motion to vacate, the Florida Supreme Court will, in effect, be ousted of jurisdiction to further entertain the defendant’s petition for certiorari, an anomaly in itself, after expending, and thus wasting, its judicial labor thereon.

To further complicate the matter, it should be noted that (a) either party may appeal an unfavorable ruling by the trial court on the motion to vacate, and (b) successive motions to vacate may be filed and appeals taken from rulings thereon so long as new grounds are raised in each motion. See Whitney v. State, 184 So.2d 207, 209 (Fla. 3d DCA 1966); 9A Fla.Jur. “Criminal Law” § 540 (1972). By requiring the trial court to entertain such motions and the appellate courts to review rulings thereon regardless of the status of other appellate remedies being simultaneously pursued by the defendant, a practice has been adopted which is likely to lead to the proliferation of a single criminal case in various courts resulting in considerable confusion as to the status of each remedy as well as needless expenditure of judicial time and effort on remedies later mooted at both the trial and appellate levels. Even if this is workable, which I doubt, I see nothing to commend such an unnecessarily complex practice particularly at a time when the state’s judicial resources are already strained by ever increasing caseloads. See England, “1979 Report on the Florida Judiciary,” 53 Fla.Bar.J. 296-305 (1979).

If the defendant herein wants to file and be heard on a motion to vacate in the trial court prior to the Florida Supreme Court’s disposition of his petition for certiorari, he has only to seek an order from the Supreme Court temporarily relinquishing jurisdiction to the trial court for just that purpose. Such is the established practice in this court, and, so far as I am aware, in every other appellate court in this state. It is based on settled law and is both fair and orderly. I see no reason to change it in favor of a practice which is fraught with the difficulties which this decision engenders.

I would affirm. 
      
      . The proceeding remains pending at this writing. The supreme court has not yet either accepted jurisdiction or denied the petition.
     
      
      . See however, Womack v. United States, 129 U.S.App.D.C. 407, 408, 395 F.2d 630, 631 (1968), followed in, e. g., Woollard v. United States, 416 F.2d 50, 51 (5th Cir. 1968) which held that
      “. . . there is no jurisdictional bar to the District Court’s entertaining a Section 2255 motion [the federal equivalent of a Rule 3.850 motion] during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances.” [e.s.]
      See also Johnson v. United States, 385 A.2d 742 (D.C.App.1978) (“special circumstances” presented which require consideration of motion to vacate notwithstanding pendency of direct appeal); United States v. Tindle, 173 U.S. App.D.C. 77, 522 F.2d 689 (1975) (same).
      
        We likewise need not revisit Gobie v. State, 188 So.2d 34 (Fla.3d DCA 1966) in which, over a dissent by Judge Pearson, this court held that the trial court could not consider a Rule 1, now 3.850, motion, while an appeal from the denial of an earlier motion under the rule was still pending.
     
      
      . It seems far more likely that a 3.850 motion would result in obviating the necessity of ruling on a petition for certiorari, than the reverse.
     
      
      . We acknowledge that Brooks v. State, 209 So.2d 271 (Fla.lst DCA 1968), which holds that even the pendency of a petition for certiorari in the United States Supreme Court ousts the trial court of jurisdiction to consider a 3.850 motion, is contrary to this conclusion. We think Brooks was wrongly decided.
     