BOBBY GENE KILGORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred by addressing the merits of a postconviction relief motion when a prior appeal was still pending, divesting it of jurisdiction.
Appellant filed a motion for postconviction relief while an appeal of a prior, similar motion was pending. The trial court denied the new motion on it…
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PER CURIAM.
The. appellant challenges an order of the trial court summarily denying his motion for postconviction relief. We conclude that the trial court erred when it addressed the merits of the appellant’s rule 3.850 motion, and reverse.
The appellant filed a previous rule 3.850 motion for postconviction relief, which was denied on the merits by the trial court. The appellant then filed an appeal of that denial. Because the appeal was still pending before this Court when the appellant filed the instant rule 3.850 motion, the trial court should have dismissed the appellant’s instant rule 3.850 motion for lack of jurisdiction. See Lee v. State, 392 So. 2d 913 (Fla. 1st DCA 1980); Hulick v. State, 644 So. 2d 117 (Fla. 2d DCA 1994).
We note that the exact claim which is raised in the appellant’s instant rule 3.850 motion was denied previously on the merits in the appellant’s prior rule 3.800(a) motion, and as the appellant has filed another rule 3.850 motion which has also been denied on the merits, this present motion would be both successive and an abuse of process. We therefore reverse the order denying the appellant’s rule 3.850 motion on the merits, and remand with directions that the trial court dismiss the appellant’s motion with prejudice.
WOLF, VAN NORTWICK and BROWNING, JJ„ concur.
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…2003); Cross v. State, 834 So. 2d 961 (Fla. 4th DCA 2003); Washington v. State, 823 So. 2d 248 (Fla. 4th DCA 2002); Lea-Scandrett v. State, 804 So. 2d 531 (Fla. 1st DCA 2002); Williams v. State, 795 So. 2d 975 (Fla. 1st DCA 2001); Kilgore v. State, 793 So. 2d 1170 (Fla. 1st DCA 2001); Casseus v. State, 509 So. 2d 965 (Fla. 3d DCA 1987).…
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Rhow v. State, 264 So. 3d 288 (Fla. 1st DCA 2019)…2 A trial court does not have jurisdiction to rule on a subsequent postconviction motion that raises the same or related claims as were raised in a prior postconviction motion that is the subject of a pending appeal. See Kilgore v. State, 793 So. 2d 1170 (Fla. 1st DCA 2001) (stating that trial court should have dismissed subsequent rule 3.850 motion for lack of jurisdiction where appeal of order denying previous rule 3.850 motion that raised the “exact claim” was pending on appeal); Jackman v.…
Authorities Cited
- Hulick v. State, 644 So. 2d 117 (Fla. 2d DCA 1994)
- Rivers v. State, 392 So. 2d 913 (Fla. 3d DCA 1980)
- LEE v. State, 392 So. 2d 913 (Fla. 1st DCA 1980)