EARL CONEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court lacked jurisdiction to consider a Rule 3.850 post-conviction motion while a direct appeal was pending, so the order denying the motion was reversed and remanded with instructions to dismiss without prejudice or stay the motion.
A trial court lacks jurisdiction to consider a Rule 3.850 post-conviction relief motion while a direct appeal is pending in the appellate court.
[1] A trial court lacks jurisdiction to consider a Rule 3.850 post-conviction relief motion while a direct appeal of the same conviction is pending in the appellate court.
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Join FLexlaw to unlock all legal intelligenceConey was convicted of a second offense and filed a direct appeal. While that appeal was pending in the appellate court, he filed a motion for post-co…
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Earl Coney appeals the order denying his motion for post conviction relief which *877he filed in the trial court while he had a direct appeal of his conviction and sentence pending in this court. By way of background, Coney has a history of pro se filings chronicled in Coney v. State, 995 So.2d 1038 (Fla. 4th DCA 2008). In that case, we prevented him from further filings connected with his prior conviction as a sanction. He was convicted of a second offense which he perpetrated after he served his sentence for his prior crime. In connection with this most recent conviction, he filed a direct appeal. In that case, we recently reversed and remanded for resentencing. See Coney v. State, — So.3d -, 2011 WL 3586200 (Fla. 4th DCA 2011).
As we stated in Mowatt v. State, 963 So.2d 348 (Fla. 4th DCA 2007), a trial court lacks jurisdiction to consider a Rule 3.850 motion while a direct appeal is pending in this court. See Daniels v. State, 712 So.2d 765 (Fla.1998). Accordingly, we reverse the order denying the motion for post conviction relief. The trial court should have either dismissed the motion without prejudice or stayed it until conclusion of the appeal. See Mowatt, 963 So.2d at 348. Any motion for post conviction relief must await the conclusion of the proceedings now pending below.
We also caution Coney that he would be well advised to accept the assistance of counsel at resentencing to raise the arguments regarding his sentence which he attempted to raise in his motion for post conviction relief.
Reversed.
WARNER, HAZOURI and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)
- Philmon Mowatt v. State, 963 So. 2d 348 (Fla. 4th DCA 2007)
- Coney v. State, 995 So. 2d 1038 (Fla. 4th DCA 2008)
- Woods v. State, 963 So. 2d 348 (Fla. 4th DCA 2007)