JOHN H. DAVIS, JR., PETITIONER,
v.
TWENTIETH JUDICIAL CIRCUIT COURT, LEE COUNTY, FLORIDA, RESPONDENT
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Petition for writ of mandamus to compel circuit court to rule on motion for rehearing denied because trial court lacked jurisdiction to entertain the motion while an appeal of prior post-conviction relief denial was pending.
A trial court lacks jurisdiction to entertain a motion for post-conviction relief filed while an appeal of a prior post-conviction relief denial is pending, and therefore mandamus does not lie to compel the court to rule on such a motion.
[1] A trial court is without jurisdiction to entertain a motion for post-conviction relief filed while an appeal of a prior post-conviction relief denial is pending, and mand…
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Join FLexlaw to unlock all legal intelligenceDavis filed a motion for post-conviction relief in December 1985, which the trial court denied January 9, 1986. Davis then filed a motion for rehearin…
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PER CURIAM.
John Davis petitions this court for a writ of mandamus compelling the circuit court to rule on his pending motion for rehearing.
In December 1985, Davis filed a motion for post-conviction relief, which the trial court denied January 9, 1986. Davis then moved for rehearing within the fifteen-day limit prescribed by Florida Rule of Criminal Procedure 3.850. The trial court apparently has taken no further action.
Under appropriate circumstances a prisoner may be entitled to a writ of mandamus if a trial court refuses to rule on a pending motion for post-conviction relief or unreasonably delays the resolution of such a motion. See, e.g., Francois v. Klein, 431 So. 2d 165 (Fla.1983); McBride v. State, 443 So. 2d 416 (Fla. 4th DCA 1984). However, we decline to grant Davis’ petition because at the time the motion in question was filed Davis was in the process of appealing the denial of another series of post-conviction motions. The trial court’s ruling in that case was not affirmed until March 7, 1986. Davis v. State, 485 So. 2d 430 (Fla. 2d DCA 1986). Thus, the trial court was without jurisdiction to entertain the subsequent motion and any order passing on that motion would be a nullity. Lee v. State, 392 So. 2d 913 (Fla. 1st DCA 1980); Gobie v. State, 188 So. 2d 34 (Fla. 3d DCA 1966); Wells v. State, 362 So. 2d 441 (Fla. 4th DCA 1978). An order ruling on the motion for rehearing similarly would have been unauthorized. Accordingly, we cannot say that the trial court breached any lawful duty by failing to dispose of the latter motion.
Petition for writ of mandamus denied.
GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…dings in Smith, 34 So. 3d 818 and Brinson, 25 So. 3d 1255. Likewise, we expressly recede from our contrary holdings in the following cases: Ruth, 635 So. 2d 1061; Ross, 598 So. 2d 149; Rodriquez, 592 So. 2d 1261; Braxton, 568 So. 2d 1003; and Davis, 491 So. 2d 1232. In addition, we distinguish our holdings in Bessette v. State, 709 So. 2d 649 (Fla. 2d DCA 1998) and Hulick v. State, 644 So. 2d 117 (Fla. 2d DCA 1994). Finally, we certify conflict with the decisions of the First, Third, and Fourth Districts in Le…1 / 2
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Livingston Mason v. Cir. Court, 603 So. 2d 94 (Fla. 5th DCA 1992)…till has not ruled on the matter. Mandamus lies to compel a trial court to rule on a motion or petition after a reasonable time. Matthews v. Circuit Court, 515 So. 2d 1065 (Fla. 5th DCA 1987); Davis v. Twentieth Judicial Circuit Court, Lee County, 491 So. 2d 1232 (Fla. 2d DCA 1986); McBride v. State, 443 So. 2d 416 (Fla. 4th DCA 1984). Here, the court has not ruled apparently because of the Department’s failure to respond to the Circuit Court’s order to show cause. Mandamus is the proper remedy to compel a…
Authorities Cited
- Wells v. State, 362 So. 2d 441 (Fla. 4th DCA 1978)
- Francois v. Klein, 431 So. 2d 165 (Fla. 1983)
- Gobie v. State, 188 So. 2d 34 (Fla. 3d DCA 1966)
- Alphonso McBRIDE v. State, 443 So. 2d 416 (Fla. 4th DCA 1984)
- Rivers v. State, 392 So. 2d 913 (Fla. 3d DCA 1980)
- LEE v. State, 392 So. 2d 913 (Fla. 1st DCA 1980)