CHRISTOPHER R. KIMMEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kimmel appeals the denial of a petition for writ of error coram nobis. The State moved to dismiss the appeal arguing that the trial court lacked jurisdiction to consider the subsequent petition because prior appeals had divested it of jurisdiction. The court denied the motion to dismiss, questioning the precedent cited and holding that divestment of jurisdiction does not apply when subsequent petitions raise unrelated issues.
The court denied the motion to dismiss, holding that divestment of jurisdiction from a prior appeal does not apply to subsequent petitions raising unrelated issues. The court also held that if a trial court lacks jurisdiction, the appropriate remedy is to raise jurisdiction as an alternative ground for affirmance in the answer brief, not a motion to dismiss.
[1] A trial court retains jurisdiction over matters that do not interfere with the appellate court's power to determine the issues on appeal.
[2] An appeal from an order denying post-conviction relief or other collateral proceedings does not divest the trial court of jurisdiction to consider a subsequent petition i…
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Join FLexlaw to unlock all legal intelligence“an appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal”
Establishes the general rule governing when appeals divest trial court jurisdiction
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Join FLexlaw to unlock all legal intelligenceKimmel previously petitioned the circuit court for a writ of error coram nobis, which was denied. Appeals were taken in case numbers 92-3890 and 92-34…
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ORDER ON APPELLEE’S MOTION TO DISMISS
PER CURIAM.
Christopher Kimmel appeals an order which denied his petition for writ of error coram nobis. Appellee State of Florida has moved for dismissal of this appeal, showing that Kimmel had previously petitioned the same circuit court for writ of error coram nobis, the petition was denied, and appeals were taken in case numbers 92-3890 and 92-3471. Appellee’s theory is that these appeals divested the trial court of jurisdiction to consider the subsequent petition for writ of error coram nobis. In support of dismissal, the state relies upon State v. Meneses, 392 So. 2d 905 (Fla.1981) and Braxton v. State, 568 So. 2d 1003 (Fla. 2d DCA 1990), dismissed, 577 So. 2d 1325 (Fla.1991).
Appellee argues that since the trial court entered the order here on appeal without jurisdiction the order is a nullity and this appeal should be dismissed.
We deny the motion to dismiss. The Meneses case holds that a direct appeal from judgment and sentence divests the trial court of jurisdiction to consider a motion for post-conviction relief. The Second District extended this rationale to find that appeal from an order denying a motion for post-conviction relief divests the trial court of jurisdiction to consider a subsequent motion for post-conviction relief. We will assume that the reasoning of Braxton is also applicable in other collateral proceedings such as these petitions for writ of error coram nobis. We must, however, question the correctness of the Braxton rationale. The general rule is that an appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal. Palma Sola Harbour Condominium, Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979).
This test, when applied to the Meneses facts, supports the conclusion that the trial court has been divested of jurisdiction to grant post-conviction relief during a direct criminal appeal. The same cannot be said, however, of an appeal from an order denying post-conviction relief or other collateral proceeding if the issues presented in a subsequent motion or petition are unrelated to those previously denied and which are then on appeal.
Moreover, even if we were to agree with the state’s basic premise of divestment of jurisdiction, we find that a motion to dismiss is not the appellee’s appropriate remedy. Where a trial court has denied relief on the merits and appellee is of the view that the trial court lacked jurisdiction, the appropriate response is to present this argument to the court in the answer brief as an alternative grounds for affirmance.
In light of the above appellee’s motion to dismiss is denied.
ZEHMER, C.J., SMITH and LAWRENCE, JJ., concur.
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Citator
Cited By (19 total)
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Bates v. State, 704 So. 2d 562 (Fla. 1st DCA 1997)…s still pending here.1 The lower court ruled that it did not have jurisdiction, owing to the pendency of that appeal, and did not reach the merits of appellant’s motion. The trial court did have jurisdiction to consider the motion. Kimmel v. State, 629 So. 2d 1110 (Fla. 1st DCA 1994), established that an appeal of a posteonvietion relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated. The issue in the other ease was whether the sentence was ill…
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Jackson v. State, 918 So. 2d 393 (Fla. 1st DCA 2006)…ppellant’s instant postconviction motion. However, as no appeal was pending with this Court, the trial court had jurisdiction to entertain appellant’s rule 3.800(a) motion. Cf Bates v. State, 704 So. 2d 562, 563 (Fla. 1st DCA 1997); Kimmel v. State, 629 So. 2d 1110, 1111 (Fla. 1st DCA 1994). Accordingly, the trial court’s order is reversed and appellant’s motion is remanded to the trial court for consideration on the merits. REVERSED and REMANDED. KAHN, C.J., LEWIS and POLSTON, JJ., concur.…
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Wheeler v. State, 918 So. 2d 369 (Fla. 1st DCA 2005)…ction motion. However, an appeal of a postconviction relief matter will not deprive the trial court of jurisdiction so long as the issues raised in the two cases are unrelated. See Bates v. State, 704 So. 2d 562 (Fla. 1st DCA 1997); Kimmel v. State, 629 So. 2d 1110 (Fla. 1st DCA 1994). A review of 1D05-2111 reveals that the issues pending appeal are unrelated to the issues raised in the present motion. We therefore reverse the trial court’s dismissal of the appellant’s motion to correct an illegal sentence a…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Meneses, 392 So. 2d 905 (Fla. 1981)
- Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135 (Fla. 2d DCA 1979)
- Brown v. State, 568 So. 2d 1003 (Fla. 2d DCA 1990)