THOMAS J. BURCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant appeals the denial of his postconviction motion filed pursuant to Flori-da Rule of Criminal Procedure 3.850. The trial court was correct in ruling that it lacked jurisdiction to consider appellant’s posteon-viction motion because appellant’s direct appeal was still pending.1 However, the trial court should have dismissed rather than denied appellant’s motion because a denial generally serves as a ruling on the merits precluding the refiling of a successive motion. See, e.g., Daniels v. State, 712 So. 2d 765 (Fla.1998) (quashing district court opinion affirming and remanding for vacation of trial court’s order of denial, where postconviction motion was prematurely filed while direct appeal was still pending). Accordingly, we quash the order of denial. Our disposition is without prejudice to appellant timely refiling his motion with the trial court if he has not done so already.
ORDER QUASHED.
MINER and LAWRENCE, JJ., and McDonald, PARKER LEE, Senior Judge, concur. . Appellant's direct appeal has since concluded with mandate issued March 12, 1998.
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Cited By (11 total)
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Wells v. State, 736 So. 2d 24 (Fla. 2d DCA 1999)…a [*25] motion for postconviction relief during the pendency of a direct appeal). However, such a prematurely filed motion should be dismissed rather than denied because a denial generally serves as a ruling on the merits. See, e.g., Burch v. State, 721 So. 2d 1198 (Fla. 1st DCA 1998). We, therefore, reverse the order of denial and remand to the trial court. Because Wells has since voluntarily dismissed his direct appeal, the trial court now has jurisdiction to entertain both Wells’ motion to amend and his ori…
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McDANIEL v. State, 789 So. 2d 1223 (Fla. 1st DCA 2001)…was pending review in the supreme court. McDaniel v. State, 790 So. 2d 441 (Fla. 1st DCA 2000), review denied, No. SC00-895, 791 So. 2d 1099 (Fla. June 20, 2001). Therefore, the trial court lacked jurisdiction to rule on the motion. Burch v. State, 721 So. 2d 1198 (Fla. 1st DCA 1998) (trial court lacks jurisdiction to consider post-conviction motion while a direct appeal is still pending). Accordingly, we reverse the order, and remand with directions that the trial court again consider and rule upon the motio…
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Lovett v. State, 851 So. 2d 851 (Fla. 2d DCA 2003)…ent: “Even if this Court had jurisdiction, it would find the instant motion should be barred as successive.” The dismissal did not state that it was with prejudice and, as such, was not a ruling on the merits of the third motion. Cf. Burch v. State, 721 So. 2d 1198 (Fla. 1st DCA 1998) (holding trial court should have dismissed motion for postconviction relief due to lack of jurisdiction rather than deny motion because denial acted as ruling on the merits of motion). It is true that rule 3.800(a) provides that…
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- Daniels v. State, 712 So. 2d 765 (Fla. 1998)