OSCAR FRANK NORMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court retains jurisdiction to consider a post-conviction motion if its issues are unrelated to those pending on appeal.
[1] 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…
[2] A trial court retains jurisdiction to consider a subsequent motion or petition for post-conviction relief if the issues presented therein are unrelated to those previousl…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a motion for ineffective assistance of counsel after appealing an order denying a prior motion challenging his habitual offender sente…
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PER CURIAM.
Oscar Frank Norman appeals an order striking the motion he filed under Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of counsel. He filed this motion after taking an appeal from denial of a motion he filed under Florida Rule of Criminal Procedure 3.800(a) challenging the habitual offender sentence he received. None of the grounds raised in 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 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 [State v. Meneses, 392 So. 2d 905 (Fla.1981) ] 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.
Kimmel, 629 So. 2d at 1111 (emphasis in original); see also Bates, 704 So. 2d at 563 (“[A]n appeal of a postconviction relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated.”). We therefore quash the order striking Mr. Norman’s motion and remand for additional proceedings.
BOOTH and BENTON, JJ., and SMITH, LARRY G., Senior Judge, CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Washington v. State, 823 So. 2d 248 (Fla. 4th DCA 2002)…denying a rule 3.850 motion prevents the trial court from ruling on a second 3.850 motion is based on the principle that a trial court has no power to rule on an issue which would interfere with the authority of the appellate court. Norman v. State, 739 So. 2d 1258 (Fla. 1st DCA 1999); Crichlow v. Equitable Life Assur. Soc. of U.S., 113 Fla. 668, 152 So. 849 (1933). In Norman, the first district held that a trial court could rule on a 3.850 motion while an appeal was pending from a 3.800 motion, because the g…
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Lindsay v. State, 842 So. 2d 1057 (Fla. 4th DCA 2003)…same case was pending in the appellate court); Jones v. State, 787 So. 2d 35 (Fla. 2d DCA 2001) (ruling that the trial court should not have dismissed a rule 3.850 motion while a prior unrelated postconviction motion was on appeal); Norman v. State, 739 So. 2d 1258 (Fla. 1st DCA 1999) (holding that a court can rule on a 3.850 motion when an appeal is pending from an unrelated rule 3.800(a) motion). On remand, the trial court is directed to consider the merits of Appellant’s motion. WARNER, STEVENSON and HAZO…
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…ee, Wells, and Gobie). . See Wheeler v. State, 918 So. 2d 369, 369 (Fla. 1st DCA 2005) (holding that postconviction jurisdiction exists as long as prior pending postconviction issue on appeal is unrelated, citing Kimmel and Bates); Norman v. State, 739 So. 2d 1258, 1258-59 (Fla. 1st DCA 1999) (holding that the trial court had jurisdiction to consider a second postconviction motion because none of the grounds raised in the second motion related in any way to the initial claim). . Although we see no reason to…
Previewing 3 of 6 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)
- Bates v. State, 704 So. 2d 562 (Fla. 1st DCA 1997)
- Kimmel v. State, 629 So. 2d 1110 (Fla. 1st DCA 1994)
- Bennett v. State, 740 So. 2d 4 (Fla. 1st DCA 1999)