BRIAN MERRILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court held that the trial court lacked jurisdiction to rule on a post-conviction motion while a direct appeal was pending.
The state conceded that the defendant's post-conviction motion was filed and denied while his direct appeal was pending. The trial court was therefore…
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THOMPSON, J.
Brian Merrill appeals the denial of his post-conviction motion filed pursuant to rule 3.850. The state concedes that Merrill’s post-conviction motion was filed and denied while his direct appeal was pending before this court.1 The state also concedes that the trial court was without jurisdiction to consider Merrill’s motion and the trial court’s order should be vacated, pursuant to Daniels v. State, 712 So. 2d 765 (Fla.1998), because it is a nullity. In Daniels, the supreme court ruled that a trial court is without jurisdiction to rule on a post-conviction motion while an appellant’s direct appeal is pending. Id.; see also Walk v. State, 707 So. 2d 933 (Fla. 5th DCA 1998) (stating that, where the trial court did not have jurisdiction to rule on a 3.850 motion, the order denying the motion is a nullity); Hall v. State, 697 So. 2d 237 (Fla. 5th DCA 1997) (same).
Accordingly, we VACATE the order and REMAND to the trial court for further consideration because the mandate in Merrill’s direct appeal has disposed of his plenary appeal. Smith v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004).
PLEUS, C.J. and PETERSON, J., concur. . Merrill appealed his conviction and sentence for carjacking in Fifth. District Court of Appeal case number 5D04-2899 on 26 August 2004. This court per curiam affirmed in Merrill v. State, 902 So. 2d 817 (Fla. 5th DCA 2005) (table decision), and issued a mandate on 20 May 2005.
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Citator
Cited By
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Meintzer v. State, 943 So. 2d 966 (Fla. 5th DCA 2006)…ity. However, that holding was in reference to a district court decision that had affirmed a void order on the merits. The supreme court remanded the case with specific instructions to the district court to vacate the order. Accord Merrill v. State, 909 So. 2d 519 (Fla. 5th DGA 2005) (where this court vacated an appealed order which was a nullity). In Carter, this court vacated the void order and then dismissed the appeal. ORDER VACATED; APPEAL DISMISSED. SAWAYA and EVANDER, JJ, concur.…
Authorities Cited
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)
- Hall v. State, 697 So. 2d 237 (Fla. 5th DCA 1997)
- Walk v. State, 707 So. 2d 933 (Fla. 5th DCA 1998)
- Smith v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004)
- Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004)