MICHAEL S. HURST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court lacked jurisdiction to entertain a Rule 3.850 motion to correct sentence while the underlying appeal was pending, so the denial was affirmed without prejudice to reapplication after the appeal concludes.
A trial court is without power to entertain a Rule 3.850 motion to correct a sentence while an appeal from the judgment and sentence is pending in the appellate court.
[1] A trial court lacks jurisdiction to entertain a Rule 3.850 motion to correct a sentence while an appeal from the judgment and sentence is pending in the appellate court.
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Join FLexlaw to unlock all legal intelligenceHurst was sentenced in case number 78-289 with a judgment that stated "Time served in jail already considered" without specifying the number of days c…
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ROBERT P. SMITH, Judge.
On this appeal from the trial court’s denial of Hurst’s Rule 3.850 motion to correct a sentence in case number 78-289, it appears that the trial court did not state in the judgment and sentence the amount of jail time credit allowed against the sentence, but recited: “Time served in jail already considered.” Ordinarily we would remand with directions to modify the sentence by specifying the number of days credited, and providing that Hurst need not be present for resentencing, Larson v. State, 301 So. 2d 491 (Fla. 1st DCA 1974); Kirkland v. State, 357 So. 2d 766 (Fla. 1st DCA 1978). This casé is complicated by the pendency here of Hurst’s appeal from the judgment and sentence, which was pending also when Hurst submitted his Rule 3.850 motion to the trial court. It appears that the trial court was without power to entertain the Rule 3.850 motion while the appeal is pending here. Grizzell v. State, 187 So. 2d 342 (Fla. 1st DCA 1966); Barton v. State, 193 So. 2d 627 (Fla. 2d DCA 1966). The order here reviewed is therefore AFFIRMED, without prejudice to Hurst’s reapplication to the trial court for correction of the sentence, should the judgment and sentence otherwise be affirmed on appeal.
AFFIRMED.
BOOTH and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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LEE v. State, 440 So. 2d 612 (Fla. 3d DCA 1983)…entencing order the exact number of days of presentence incarceration to which the defendant is entitled as a credit against his sentence under the above statute. The defendant need not be present at this modification proceeding. See Hurst v. State, 379 So. 2d 434 (Fla. 1st DCA 1980); De Stefano v. State, 377 So. 2d 751 (Fla. 4th DCA), cert. denied, 386 So. 2d 635 (Fla.1980). Affirmed in part; remanded for modification of sentencing order.…
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Carrin v. State, 459 So. 2d 430 (Fla. 1st DCA 1984)…motion was filed in the lower court during the penden-cy of appellant’s direct appeal; in such circumstances the lower court is without jurisdiction to grant post-conviction relief and such a motion is therefore properly denied. See Hurst v. State, 379 So. 2d 434 (Fla. 1st DCA 1980). Should appellant desire to pursue such relief during the pend-ency of a direct appeal a request may be filed in the appellate court to temporarily relinquish jurisdiction for the lower court to consider a Rule 3.850 motion. Th…
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Johnson v. State, 463 So. 2d 419 (Fla. 1st DCA 1985)…PER CURIAM. The order appealed is affirmed without prejudice to appellant’s ability to present the issues raised in a proper Fla.R.Crim.P. 3.850 motion. See Hurst v. State, 379 So. 2d 434 (Fla. 1st DCA 1980); Carrin v. State, 459 So. 2d 430 (Fla. 1st DCA, 1984). ERVIN, C.J., and SMITH and NIM-MONS, JJ., concur.…
Authorities Cited
- Barton v. State, 193 So. 2d 627 (Fla. 2d DCA 1966)
- Buford Dalton Blackman v. City OF Gainesville, 187 So. 2d 342 (Fla. 1st DCA 1966)
- Grizzell v. State, 187 So. 2d 342 (Fla. 1st DCA 1966)
- Larson v. State, 301 So. 2d 491 (Fla. 1st DCA 1974)
- Kirkland v. State, 357 So. 2d 766 (Fla. 1st DCA 1978)