JAMES MCDANIEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant seeks review of a final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. When the trial court denied the motion, appellant’s direct appeal from his convictions and sentences 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 motion now that appellant’s direct appeals have been exhausted.
REVERSED and REMANDED, with directions.
WEBSTER, BROWNING and POLSTON, JJ., CONCUR.
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Citator
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Hogarth v. State, 970 So. 2d 880 (Fla. 1st DCA 2007)…ant’s direct appeal of judgment and sentence was pending, we reverse. The trial court erred in ruling on the appellant’s motion for postconviction relief while the appellant’s case was the subject of a pending direct appeal. See McDaniel v. State, 789 So. 2d 1223, 1224 (Fla. 1st DCA 2001). Instead, the trial court should have dismissed the motion with leave to refile after the direct appeal was final. [*881] See Matthews v. State, 889 So. 2d 893 (Fla. 2d DCA 2004). Accordingly, the trial court’s order is r…
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Khamron Robinson v. State, 243 So. 3d 532 (Fla. 1st DCA 2018)
Authorities Cited
- Burch v. State, 721 So. 2d 1198 (Fla. 1st DCA 1998)
- McDANIEL v. State, 790 So. 2d 441 (Fla. 1st DCA 2000)