JOHN CROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Cross appealed the dismissal of his Rule 3.850 postconviction motion, arguing the trial court had jurisdiction to consider it despite a pending appeal from new sentences. The Second District Court of Appeal reversed, holding that a trial court retains jurisdiction over a Rule 3.850 motion when the pending appeal concerns only new sentences from a postconviction motion, not the original judgment.
The trial court retains jurisdiction to consider a Rule 3.850 motion when the pending appeal concerns only new sentences resulting from a postconviction motion, provided the issues raised in the postconviction motion are unrelated to the issues on appeal.
[1] A trial court retains jurisdiction to consider a motion for postconviction relief when the pending appeal concerns new sentences imposed following a prior postconviction…
[2] A pending appeal generally divests a trial court of jurisdiction, except for matters that do not interfere with the appellate court's authority or the rights of parties u…
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Join FLexlaw to unlock all legal intelligence“[A] trial court is divested of jurisdiction upon notice of an appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.”
Establishes the general rule governing when trial courts lose jurisdiction upon notice of appeal.
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Join FLexlaw to unlock all legal intelligenceCross's convictions became final in 2000. He filed a successful Rule 3.800(a) motion, resulting in resentencing. While his appeal from the new sentenc…
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KELLY, Judge.
John Cross challenges the postconviction court’s dismissal of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The post-conviction court determined that it lacked jurisdiction because Cross had an appeal pending in this court when he filed the rule 3.850 motion. We reverse because the trial court did have jurisdiction to entertain Cross’s motion.
Cross’s judgments and sentences became final in 2000. Since then he has filed numerous unsuccessful postconviction motions with one exception. Cross filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) which the trial court granted in part, and it then resen-tenced Cross. The appeal from the resentencing was pending in this court when Cross filed his rule 3.850 motion challenging his convictions based on newly discovered evidence. The trial court concluded that Cross’s appeal of his new sentences divested it of jurisdiction over his rule 3.850 motion.
“[A] trial court is divested of jurisdiction upon notice of an appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979) (emphasis added).
In accordance with this general rule, this court has held that “[a]n appeal of a postconviction relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated.” Jones v. State, 787 So. 2d 35, 36 (Fla. 2d DCA 2001); see also Hartley v. State, 927 So. 2d 1030 (Fla. 2d DCA 2006); Ottesen v. State, 844 So. 2d 753 (Fla. 2d DCA 2003); Ali v. State, 732 So. 2d 481 (Fla. 2d DCA 1999).
On the other hand, we have recognized that trial courts lack jurisdiction to consider the merits of a defendant’s rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending. See, e.g., Johnson v. State, 657 So. 2d 11 (Fla. 2d DCA 1995).
Cross’s appeal did not pertain to his original judgments or sentences but to new sentences imposed as a result of a successful postconviction motion. Because this case involves an appeal from sentences imposed following a postconviction motion, we conclude that the trial court was not divested of jurisdiction as it would have been had the pending appeal been from the original sentences or from new sentences imposed on remand after a successful direct appeal. Compare Mitchell v. State, 846 So. 2d 559 (Fla. 4th DCA 2003) (holding that an appeal from a new sentence imposed pursuant to a postconviction motion did not divest the trial court of jurisdiction to consider a pending rule 3.850 motion in the same case), with Snipes v. State, 843 So. 2d 1043 (Fla. 2d DCA 2003) (noting that the trial court would not have had jurisdiction to consider the merits of a rule 3.850 motion filed during the pendency of an appeal from a sentence that the trial court had imposed on remand from a successful direct appeal of the original sentence).
Because the claim Cross asserts in his rule 3.850 motion is unrelated to the issues he raises in the appeal from the new sentences, the trial court had jurisdiction to consider it.
Accordingly, we reverse the postconviction court’s order of dismissal and remand for the court to consider Cross’s rule 3.850 motion provided it is facially sufficient.
Reversed and remanded.
CASANUEVA and VILLANTI, JJ., Concur.
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Citator
Cited By
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Meintzer v. State, 943 So. 2d 966 (Fla. 5th DCA 2006)…with the rights of a party to the appeal which are under consideration by the appellate court. See Daniels v. State, 712 So. 2d 765 (Fla.1998) (trial court lacks jurisdiction to rule on 3.850 motion during pendency of direct appeal); Cross v. State, 930 So. 2d 863 (Fla. 2d DCA 2006); Carter v. State, 929 So. 2d 1161 (Fla. 5th DCA 2006) (where defendant received belated appeal of sentence, trial court lacked jurisdiction to rule on 3.850motion attacking the same sentence); Johnson v. State, 657 So. 2d 11 (Fla.…
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Ross v. State, 947 So. 2d 699 (Fla. 4th DCA 2007)…g on appeal in the district court. See Mitchell v. State, 846 So. 2d 559, 560 (Fla. 4th DCA 2003) (“a trial court lacks jurisdiction to rule on a postconviction motion while the same defendant’s direct appeal is pending”); , see also Cross v. State, 930 So. 2d 863 (Fla. 2d DCA 2006) (“[W]e have recognized that trial courts lack jurisdiction to consider the merits of a defendant’s rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending.”). In the instant case, Ross proper…1 / 2
Authorities Cited
- Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135 (Fla. 2d DCA 1979)
- Snipes v. State, 843 So. 2d 1043 (Fla. 2d DCA 2003)
- Johnson v. State, 657 So. 2d 11 (Fla. 2d DCA 1995)
- Jones v. State, 787 So. 2d 35 (Fla. 2d DCA 2001)
- Bilal Siddiq ALI v. State, 732 So. 2d 481 (Fla. 2d DCA 1999)
- Walker v. Walker, 844 So. 2d 753 (Fla. 1st DCA 2003)
- Mitchell v. State, 846 So. 2d 559 (Fla. 4th DCA 2003)
- Drew C. Hartley v. State, 927 So. 2d 1030 (Fla. 2d DCA 2006)