HORACE HANKERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hankerson appealed a trial court's amended order denying his Rule 3.800(a) post-conviction motion. The appellate court vacated the amended order and dismissed the appeal because the trial court lacked jurisdiction to enter it while the original appeal was pending.
The trial court lacked jurisdiction to enter the amended order because the defendant's appeal involving the same Rule 3.800(a) motion was pending and the trial court had not sought leave of court to do so. Therefore, the amended order was void.
[1] A trial court lacks jurisdiction to enter an amended order denying a post-conviction relief motion when an appeal concerning the same motion is pending before an appellat…
[2] An amended order entered by a trial court without jurisdiction is a nullity.
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Join FLexlaw to unlock all legal intelligence“The trial court lacked jurisdiction to enter the amended order because the defendant's appeal involving the same rule 3.800(a) motion was pending in this court and the trial court had not sought leave of court to enter an amended order.”
Establishes the core holding that trial courts cannot modify orders on matters of pending appeals without permission.
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Join FLexlaw to unlock all legal intelligenceThe trial court denied Hankerson's Rule 3.800(a) motion on January 27, 2004, and Hankerson timely appealed. While the appeal was pending and before th…
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PALMER, J.
Horace Hankerson (defendant) appeals the amended order entered by the trial court denying his rule 3.800(a) motion.1 Concluding that the trial court lacked jurisdiction to enter the amended order, we vacate that order and dismiss the instant appeal.
The defendant filed a motion seeking rule 3.800(a) post-conviction relief. The trial court originally entered an order denying the motion on January 27, 2004, and the defendant timely filed a notice of appeal from that order. While the appeal was' pending, the trial court entered an amended order, again denying the defendant’s 3.800(a) motion. Before the trial court entered its amended order, this court had issued a decision affirming the trial court’s original order. However, because of the timely filing of a motion for rehearing, subsequently denied, the mandate did not issue in the original appeal until after the trial court entered its amended order. The trial court lacked jurisdiction to enter the amended order because the defendant’s appeal involving the same rule 3.800(a) motion was pending in this court and the trial court had not sought leave of court to enter an amended order. See Fla. R.App. P. 9.600. As the trial court was without jurisdiction to enter the amended order, it was a nullity. Cf. Tellas v. State, 811 So. 2d 756 (Fla. 1st DCA 2002). Importantly, if we were to rule on the merits of the trial court’s amended order, our decision would also be a nullity. See Daniels v. State, 712 So. 2d 765 (Fla.1998)(holding that since district court of appeal properly found that the trial court lacked jurisdiction to rule on a 3.850 motion during the pendency of a direct appeal, the district court of appeal should have vacated the order rather than affirming on the merits).
Accordingly, we vacate the amended order entered by the trial court and dismiss this appeal.
DISMISSED.
PETERSON and TORPY, JJ., concur. . See Fla. R. Cr. P. 3.800.
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Carter v. State, 929 So. 2d 1161 (Fla. 5th DCA 2006)…162] appeal, the trial court erred in ruling on his rule 3.850 motion. When a defendant files a notice of appeal before the trial court disposes of his postconviction motion, the defendant is deemed to have abandoned his motion. Hankerson v. State, 879 So. 2d 71 (Fla. 5th DCA 2004); Moore v. State, 789 So. 2d 551, 552 (Fla. 5th DCA 2001). Here, the trial court’s order is a nullity because the court lacked jurisdiction to enter the order while the appeal of the same subject matter was pending in this court.1…
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Rivera v. State, 913 So. 2d 769 (Fla. 5th DCA 2005)…nces. The order granting Rivera’s motion for reconsideration is a nullity because the trial court lacked jurisdiction to enter the order while the appeal of the original order was pending in this court. See Fla. R.App. P. 9.600; Hankerson v. State, 879 So. 2d 71 (Fla. 5th DCA 2004); see also Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633 (Fla. 5th DCA 2005). Accordingly, we vacate the order granting the motion for reconsideration of the motion to clarify sentence and affirm the order denying the motion…
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Smith v. State, 997 So. 2d 507 (Fla. 5th DCA 2008)…motion for rehearing was pending and before mandate issued in Smith v. State, 987 So. 2d 724 (Fla. 5th DCA 2008), it lacked jurisdiction, and its order is a nullity. See Carter v. State, 929 So. 2d 1161, 1162 (Fla. 5th DCA 2006); Hankerson v. State, 879 So. 2d 71, 72 (Fla. 5th DCA 2004). Accordingly, we vacate the trial court’s order and dismiss the appeal. We remind the court that it is still under a mandate to rule on appellant’s motion. ORDER VACATED and APPEAL DISMISSED. PLEUS, EVANDER and COHEN, J…
Authorities Cited
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)
- City OF Miami v. Quik Cash Jewelry & Pawn, Inc., 811 So. 2d 756 (Fla. 3d DCA 2002)
- Bennie Frank Tellas v. State, 811 So. 2d 756 (Fla. 1st DCA 2002)