RICHARD L. NEWBERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
RICHARD L. NEWBERRY, APPELLANT,
STATE OF FLORIDA, APPELLEE
827 So. 2d 387
Florida District Court of Appeal, Fourth District (2002)
Positive Treatment
Cited by 4 cases
Opinion of the Court
PER CURIAM.
Appellant, Richard L. Newberry, appeals a circuit court order striking his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The circuit court struck the motion believing that it lacked jurisdiction due to a pending appeal by appellant from separate circuit court orders denying his 3.850 motion for post conviction relief. This was error as the motions were wholly unrelated. Cf. Norman v. State, 739 So. 2d 1258 (Fla. 1st DCA 1999).
As the State now acknowledges, the circuit court had jurisdiction to entertain appellant’s rule 3.853 motion. Therefore, we reverse and remand for the trial court to conduct further proceedings on the motion.
REVERSED and REMANDED.
KLEIN, STEVENSON and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gibson v. State, 920 So. 2d 719 (Fla. 4th DCA 2006)…circuit court struck the motion because an appeal from the denial of Gibson’s unrelated rule 3.800(a) motion was pending with this court. However, the trial court had jurisdiction to entertain the unrelated rule 3.850 motion. See Newberry v. State, 827 So. 2d 387 (Fla. 4th DCA 2002); Norman v. State, 739 So. 2d 1258 (Fla. 1st DCA 1999). We reverse and remand to the circuit court to conduct further proceedings on the motion. POLEN, KLEIN and GROSS, JJ., concur.…
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Neal v. State, 914 So. 2d 1084 (Fla. 4th DCA 2005)…ad already issued. Moreover, even if the postconviction appeal had still been pending, that should not have deprived the trial court of jurisdiction to consider Defendant’s rule 3.853 motion, which raised wholly unrelated matters. Newberry v. State, 827 So. 2d 387 (Fla. 4th DCA 2002). Accordingly, the order on appeal is reversed and the matter is remanded for the trial court to consider the merits of the rule 3.853 motion. Reversed and Remanded for further proceedings. GUNTHER, KLEIN and TAYLOR, JJ.,…
Authorities Cited
- Norman v. State, 739 So. 2d 1258 (Fla. 1st DCA 1999)