GERALD LYNN BATES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A pending appeal of a prior motion does not divest the trial court of jurisdiction to hear a subsequent, unrelated postconviction relief motion.
Appellant filed a Rule 3.850 motion for postconviction relief while a prior Rule 3.800 motion was pending appeal. The trial court denied the Rule 3.85…
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PER CURIAM.
The circuit court denied appellant’s motion for posteonvietion relief on jurisdictional grounds. We reverse and remand.
Appellant filed this motion pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel during his trial for armed burglary, aggravated assault with a weapon and robbery with a weapon. Previously, he had filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. This motion had been denied by the circuit court, but appeal was 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 illegal, whereas the issue raised here was whether appellant would be entitled to a new trial. Those issues are unrelated; therefore, the trial court did have jurisdiction, and we must remand.
Reversed and remanded for further consistent proceedings.
MINER, LAWRENCE and PADOVANO, JJ., concur. . After the trial court entered its order in thjs case, this court decided Bates v. State, 690 So. 2d 594 (Fla. 1st DCA 1997).
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Cited By (26 total)
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Jackson v. State, 918 So. 2d 393 (Fla. 1st DCA 2006)…motion, the trial court was without jurisdiction to hear appellant’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.…
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Wheeler v. State, 918 So. 2d 369 (Fla. 1st DCA 2005)…pellant had a pending appeal of an earlier postcon-viction 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 t…
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Norman v. State, 739 So. 2d 1258 (Fla. 1st DCA 1999)…the motion the trial court struck here related in any way to Mr. Norman’s earlier claim that his habitual offender sentence constituted an illegal sentence. See Keel v. State, 24 Fla. L. Weekly D692, 740 So. 2d 4 (Fla. 1st DCA 1999); Bates v. State, 704 So. 2d 562, 563 (Fla. 1st DCA 1997); Kimmel v. State, 629 So. 2d 1110, 1110-11 (Fla. 1st DCA 1994). The trial court struck his motion, however, on grounds it lacked jurisdiction to consider the motion. As we have previously explained: The general rule is tha…
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- Kimmel v. State, 629 So. 2d 1110 (Fla. 1st DCA 1994)