EARL ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Earl Allen appealed the summary denial of his motion for postconviction relief. The court affirmed in part and reversed in part, holding that the trial court had jurisdiction to consider the motion despite a pending direct appeal, and remanding two viable ineffective assistance of counsel claims for further proceedings.
The trial court retained jurisdiction to consider the postconviction motion because Allen's unauthorized notice of appeal and the court's denial of the prohibition petition did not divest the trial court of jurisdiction. Two claims were remanded for further proceedings: (1) the ineffective assistance claim regarding failure to suppress a coerced confession, and (2) the claim that court costs were imposed without notice.
[1] A pending direct appeal does not divest a trial court of jurisdiction to consider a motion for postconviction relief, absent specific appellate court orders.
[2] An unauthorized notice of appeal does not divest the trial court of jurisdiction to consider a motion for postconviction relief.
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Join FLexlaw to unlock all legal intelligence“Allen's decision to file notice of appeal, where unauthorized by rules of appellate procedure, did not divest the trial court of jurisdiction, nor would a petition for writ of prohibition unless and until this court issued a show cause order.”
Establishes that the trial court retained jurisdiction despite the pending appeal.
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Join FLexlaw to unlock all legal intelligenceAllen filed a direct appeal from the denial of his pretrial motion for speedy trial discharge, which this court treated as a petition for writ of proh…
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PER CURIAM.
Earl Allen appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
The motion was denied because the trial court believed a direct appeal was pending and therefore that it had no jurisdiction to consider the motion. See Marshall v. State, 481 So. 2d 973 (Fla. 2d DCA 1986). However, Allen had appealed directly from the denial of his pretrial motion for speedy trial discharge. This court treated the appeal as a petition for writ of prohibition on the authority of Sherrod v. Franza, 427 So. 2d 161 (Fla.1983), and denied relief. Allen’s decision to file notice of appeal, where unauthorized by rules of appellate procedure, did not divest the trial court of jurisdiction, nor would a petition for writ of prohibition unless and until this court issued a show cause order. See Fla.R.App.P. 9.100(f). Turning to the merits of the motion, we find that only two of the numerous grounds present even a minimal showing of entitlement to relief. Allen alleges that counsel was ineffective for failing to move the suppression of his confession, which he claims was coerced despite his having “invoked the right to counsel.” If this claim is true, it could constitute ineffective assistance. Cintron v. State, 495 So. 2d 248 (Fla. 2d DCA 1986). Allen also maintains that court costs were imposed without notice, an issue which may be raised either on direct appeal or via a motion for postconviction relief. See White v. State, 571 So. 2d 123 (Fla. 3d DCA 1990). We therefore remand for further proceedings as to these two issues. The order denying postconviction relief is affirmed in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.
SCHEB, A.C.J., and HALL and ALTENBERND, JJ., concur.
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Harrell v. State, 721 So. 2d 1185 (Fla. 5th DCA 1998)…ver the cause to the extent that the lower court’s acts will affect the subject matter of the appeal). A petition for writ of prohibition divests a trial court of jurisdiction at the time the district court issues a show cause order. Allen v. State, 579 So. 2d 200 (Fla. 2d DCA 1991). The petition contains a certification by Harrell’s current attorney that Harrell was convicted on December 20 1978, based on the appellate court’s records, and that the appellate court had not at that point denied the writ, afte…
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Authorities Cited
- Sherrod v. The Honorable Arthur J. Franza, 427 So. 2d 161 (Fla. 1983)
- Marshall v. State, 481 So. 2d 973 (Fla. 2d DCA 1986)
- Cintron v. State, 495 So. 2d 248 (Fla. 2d DCA 1986)
- White v. State, 571 So. 2d 123 (Fla. 3d DCA 1990)