CHRISTOPHER W. PACE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court denied a pro se petition for writ of prohibition seeking to disqualify the trial judge and all judges of the Eighteenth Judicial Circuit because the petitioner failed to file a proper motion to disqualify in the trial court, and the trial court lacked jurisdiction to enter the challenged order while an appeal was pending.
A petition for writ of prohibition to disqualify judges must be denied when the petitioner has not filed a proper motion to disqualify in the trial court and the trial court lacked jurisdiction to enter the challenged order during a pending appeal.
[1] Once an appeal is filed, the trial court loses jurisdiction over the matter that is the subject of the appeal, rendering any subsequent order by the trial court a nullity…
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Join FLexlaw to unlock all legal intelligenceChristopher Pace filed a pro se petition seeking to disqualify the trial judge and all judges of the Eighteenth Judicial Circuit from an evidentiary h…
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PALMER, J.
Christopher Pace has filed a pro se petition with this court requesting a writ of prohibition. The petition seeks to disqualify the trial judge, as well as all the other judges of the Eighteenth Judicial Circuit, from presiding over an evidentiary hearing that Pace claims will be held on December 28, 2005. The record discloses that the evidentiary hearing will be held pursuant to the trial court’s May 2, 2005 order granting Pace’s motion for rehearing as to one of three claims raised in his motion for post-conviction relief filed under rule 3.850 of the Florida Rules of Criminal Proce dure. We deny the petition on procedural grounds as the record fails to demonstrate either that a proper motion to disqualify was filed by Pace below or that the trial court denied such a motion. See Fla. R. Jud. Admin. 2.160; see also Pierce v. State, 873 So. 2d 618 (Fla. 2d DCA 2004).
In closing, we note that, at the time the May 2, 2005 order was entered by the trial court, this court had pending before it an appeal from the trial court’s summary denial of Pace’s rule 3.850 motion. The law is well established that, once an appeal is filed, the trial court loses jurisdiction with regard to the matter which is the subject of the appeal. As such, the May 2, 2005 order is a nullity. See Rivera v. State, 913 So. 2d 769 (Fla. 5th DCA 2005); see also Fla. R.App. P. 9.600(b).
PETITION DENIED.
SHARP, W. and GRIFFIN, JJ., concur.
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Citator
Cited By
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Davis v. State, 93 So. 3d 409 (Fla. 2d DCA 2012)…the trial court entered the order after Davis filed his notice of appeal. “The law is well established that, once an appeal is filed, the trial court loses jurisdiction with regard to the matter which is the subject of the appeal.” Pace v. State, 919 So. 2d 545, 546 (Fla. 5th DCA 2005). The trial court was therefore divested of jurisdiction to cure any deficiencies or omissions, and the nunc pro tunc order is a nullity. See Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633, 634 (Fla. 5th DCA 2005) (“[A]n…
Authorities Cited
- Rivera v. State, 913 So. 2d 769 (Fla. 5th DCA 2005)
- Pierce v. State, 873 So. 2d 618 (Fla. 2d DCA 2004)