DAVID L. KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court remanded case to trial court to determine whether appellant's motion for rehearing of post-conviction relief denial was timely and to dispose of that motion, as jurisdiction could not vest while the motion remained pending.
When a motion for rehearing of an order denying post-conviction relief is pending before the trial court, the appellate court lacks clear jurisdiction and must remand for the trial court to determine timeliness and dispose of the motion.
[1] Appellate jurisdiction does not vest over an appeal from denial of post-conviction relief when a motion for rehearing of that denial remains pending before the trial cour…
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Join FLexlaw to unlock all legal intelligenceKing was convicted of attempted second-degree murder and possession of contraband on March 22, 1984, and his conviction was affirmed on appeal. He fil…
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SHIVERS, Judge.
Appellant David L. King appeals the trial court’s denial of his motion for post-conviction relief: King was found guilty of attempted second-degree murder and possession of contraband on March 22, 1984. His conviction was affirmed on appeal. King v. State, 468 So. 2d 510 (Fla. 1st DCA 1985). King filed his motion for post-conviction relief on October 24, 1985. The trial judge denied King’s motion. On December 13, 1985, King filed a motion for rehearing. While the motion was pending before the trial court, King filed a notice of appeal. The record does not reveal that the trial court has acted upon the motion.
We observed in Lloyd v. Harrison, 489 So. 2d 856 (Fla. 1st DCA 1986), that it is impossible to determine whether jurisdiction has vested when it is unclear whether the trial court has disposed of the motion for rehearing of the order denying post-conviction relief. Therefore, in accordance with Lloyd, this case should be remanded to the trial court for determination of whether appellant’s motion was timely and for disposition of that motion. Appellant must inform this court within thirty days as to whether the trial court has ruled upon the motion for rehearing and must also supplement the record with any disposition which the trial court makes pursuant to the motion for rehearing.
REMANDED.
SMITH and ZEHMER, JJ., concur.
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Tally v. State, 751 So. 2d 152 (Fla. 1st DCA 2000)…PER CURIAM. We find that appellant’s motion for rehearing of the order denying his 3.850 motion for postconviction relief was timely, contrary to the circuit court’s determination. See King v. State, 504 So. 2d 405, 406-07 (Fla. 1st DCA 1987). We are unable to say that the motion for rehearing was altogether frivolous as the motion may have pointed out things the trial court overlooked, although we make no intimations in this regard. Accordingly, the order den…
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Whipple v. State, 867 So. 2d 433 (Fla. 1st DCA 2004)…t-conviction relief must be filed within 15 days of the date of service of the order. See Fla. R.Crim. P. 3.850(g). However, when the order is served by mail, Rule 3.070 provides that three days shall be added to this time period. See King v. State, 504 So. 2d 405 (Fla. 1st DCA 1987). In this case, the appellant had 18 days from the June 3, 2003 service date to file a motion for rehearing. The end of this period fell on Saturday, June 21, 2003. Therefore, the appellant had until Monday, June 23, 2003 to file…
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King v. State, 504 So. 2d 405 (Fla. 1st DCA 1987)…SHIVERS, Judge. This cause arises out of an instruction we issued to appellant David King in a previous decision, King v. State, 504 So. 2d 405 (Fla. 1st DCA 1986). In King v. State we remanded appellant’s cause to the trial court for a determination of whether King's motion was timely. This was necessary in light of our holding in Lloyd v. Harrison, 489 So. 2d 856 (Fla. 1st DCA 1986), that…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lloyd v. Baya Harrison, 489 So. 2d 856 (Fla. 1st DCA 1986)
- King v. State, 468 So. 2d 510 (Fla. 1st DCA 1985)