CHARLES R. LIBBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court lacked jurisdiction to entertain a motion for postconviction relief while an appeal was pending.
Appellant filed a motion for postconviction relief while his direct appeal was pending. The trial court summarily denied the motion.…
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PER CURIAM.
This is an appeal from the trial court’s summary denial, on the merits, of appellant’s Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of appellant’s motion, not on the merits of the allegations raised therein, but because the trial court lacked jurisdiction to entertain the motion.
Appellant filed his rule 3.850 motion in the trial court on October 21, 1987. In his motion he alleged that an appeal from his judgment and sentence was pending in this court. Our court records reveal that appellant’s notice of appeal was filed in the trial court on August 11, 1987, and is currently pending disposition here.
The supreme court has held 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.” State v. Meneses, 392 So. 2d 905, 907 (Fla.1981). Accordingly, we affirm the trial court’s denial of appellant’s rule 3.850 motion without prejudice to appellant (1) filing another such motion after his present appeal has been decided and has become final or (2) as recognized in Meneses, seeking an order from this court to temporarily relinquish jurisdiction to the trial court for the purpose of being heard on his motion.
RYDER, A.C.J., and LEHAN and PARKER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnson v. State, 657 So. 2d 11 (Fla. 2d DCA 1995)…ction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court correctly denied the motion because Mr. Johnson’s direct appeal was pending when he filed the motion and when the trial court entered its order. Libby v. State, 520 So. 2d 322 (Fla. 2d DCA 1988). The judgment and sentence, entered on a plea of nolo contendere, were recently affirmed on direct appeal, and the record on appeal is still on file with this court. In the interest of judicial economy, we have reviewed that recor…
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Cannady v. State, 771 So. 2d 1266 (Fla. 2d DCA 2000)…n. Further, while appeal proceedings are pending in an appellate court, a trial court is without jurisdiction to consider the merits of a motion for postconviction relief made pursuant to Florida Rule of Criminal Procedure 3.850. See Libby v. State, 520 So. 2d 322 (Fla. 2d DCA 1988). We therefore affirm the denial of the motion for postcon-viction relief, without prejudice to the appellant again filing the motion after this appeal has become final. Affirmed. CASANUEVA and STRINGER, JJ., Concur.…
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Campbell v. State, 543 So. 2d 885 (Fla. 1st DCA 1989)…f after disposition of the direct appeal and the return of jurisdiction to the lower court. State v. Meneses, 392 So. 2d at 907; Brown v. State, 528 So. 2d 508 (Fla. 1st DCA 1988); Sumpter v. State, 523 So. 2d 806 (Fla. 3d DCA 1988); Libby v. State, 520 So. 2d 322 (Fla. 2d DCA 1988). BOOTH, WIGGINTON and BARFIELD, JJ., concur.…
Authorities Cited
- State v. Meneses, 392 So. 2d 905 (Fla. 1981)