HORACE WILCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
HORACE WILCHER, APPELLANT,
STATE OF FLORIDA, APPELLEE
805 So. 2d 74
Florida District Court of Appeal, Fourth District (2002)
Negative Treatment
Cited by 6 cases
Opinion of the Court
PER CURIAM.
Because appellant’s motion for relief pursuant to Florida Rule of Criminal Procedure 3.850 was pending during a time appellant’s direct appeal was before this court, the trial court was without jurisdiction to rule on the motion, even though it was filed when no appeal was pending, and even though it was not ruled upon until after our mandate issued in the direct appeal, Wilcher v. State, 787 So. 2d 150 (Fla. 4th DCA 2001). Accordingly, we remand to the trial court with directions to dismiss appellant’s 3.850 motion, without prejudice for appellant to timely file a new motion in compliance with the rule.
POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Perez v. State, 834 So. 2d 882 (Fla. 4th DCA 2002)…ile his direct appeal was pending. Paragraph thirteen of his motion recognized that the trial court was without jurisdiction to rule on the motion while the direct appeal was pending. The trial court dismissed the motion relying on Wilcher v. State, 805 So. 2d 74 (Fla. 4th DCA 2002). Wilcher indicates that dismissal is the appropriate remedy under these circumstances, concluding that the trial court could not rule [*883] on a 3.850 motion filed while an appeal is pending, even after the appeal is concluded a…
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Mitchell v. State, 846 So. 2d 559 (Fla. 4th DCA 2003)…his rule 3.850 motion while the appeal from his resentencing was pending in this court. Generally, a trial court lacks jurisdiction to rule on a post-conviction motion while the same defendant’s direct appeal is pending. See, e.g., Wilcher v. State, 805 So. 2d 74 (Fla. 4th DCA), receded from in part by Perez v. State, 834 So. 2d 882 (Fla. 4th DCA 2002). Here, however, the direct appeal did not [*561] pertain to his original judgment and sentence, but - only to the new sentence imposed while the rule 3.850 mo…
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Leonard v. State, 835 So. 2d 1210 (Fla. 4th DCA 2003)…12, 2002, order and direct the trial court on remand either to dismiss the motion with leave to refile, or to enter a new ruling on the motion. See Perez v. State, 834 So. 2d 882, 882-83 (Fla. 4th DCA 2002) (en banc) (receding from Wilcher v. State, 805 So. 2d 74 (Fla. 4th DCA 2002), to the extent this court held in Wilcher that the proper remedy in such cases is dismissal, explaining that dismissal is not required, but “when the trial court is precluded by a pending appeal from ruling on a motion for post-c…
Authorities Cited
- Wilcher v. State, 787 So. 2d 150 (Fla. 4th DCA 2001)