KEVIN L. BREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The circuit court lacked jurisdiction to rule on the motion to set aside the 1973 DUI conviction.
Kevin L. Breen sought to set aside a 1973 DUI conviction. The circuit court denied relief, but this court reverses, finding the circuit court lacked j…
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PER CURIAM.
Kevin L. Breen filed a motion in county court seeking to set aside his 1973 DUI conviction. In 1997, the circuit court found that the 1973 conviction was not a constitutional valid conviction for enhancement purposes. Breen had been charged with felony DUI. This court affirmed trial court’s findings. State v. Breen, 709 So. 2d 546 (Fla. 4th DCA 1998).
Citing Wood v. State, 750 So. 2d 592 (Fla.1999), Breen filed a motion in county court seeking to set aside the 1973 conviction. See also State v. Perry, 786 So. 2d 554 (Fla.2001).
While the motion to set aside was filed in county court, the circuit court entered the order denying relief. We reverse, as the circuit court lacked jurisdiction to rule on Breen’s motion. Sutton v. State, 384 So. 2d 955 (Fla. 2d DCA 1980). On remand, the county court shall consider the merits of Breen’s claim including the application of Wood to misdemeanors, whether the state’s challenge is barred by the law of the case doctrine, and if not, whether Breen’s claim is barred by laches. Perry, 786 So. 2d at 558.
REVERSED AND REMANDED. .
GUNTHER, WARNER and GROSS, JJ., concur.
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Dilallo v. State, 903 So. 2d 1030 (Fla. 4th DCA 2005)…requires the defendant to seek post-conviction relief from the court which entertained his prosecution. That would be the county court in this case. Thus, the circuit court lacked jurisdiction to entertain the 3.850 motion filed. See Breen v. State, 801 So. 2d 271 (Fla. 4th DCA 2001); Sutton v. State, 384 So. 2d 955 (Fla. 2d DCA 1980). We reverse and remand to the county court to entertain the appellant’s pending post-conviction motion. Reversed and remanded. STONE, SHAHOOD and MAY, JJ., concur.…
Authorities Cited
- Wood v. State, 750 So. 2d 592 (Fla. 1999)
- State v. Perry, 786 So. 2d 554 (Fla. 2001)
- Hollis E. Sutton v. State, 384 So. 2d 955 (Fla. 2d DCA 1980)