TODD KEVIN NORWOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Todd Kevin Norwood appeals a post-conviction court's order vacating its own prior orders that were entered after the appellate court prematurely issued mandate. The court affirms the vacation but remands for the post-conviction court to consider the merits of the underlying claim on remand, given the unique procedural circumstances.
The court affirms the post-conviction court's vacation of the orders entered during the pendency of the appeal, as the post-conviction court lacked jurisdiction to consider claim one while rehearing was pending. However, under the unique circumstances where Norwood amended claim one to be facially sufficient in reliance on the erroneously issued orders, the post-conviction court should consider the merits of claim one on remand.
[1] A lower court lacks jurisdiction to consider a motion for postconviction relief while an earlier disposition of that motion is pending in an appellate court.
[2] An appellate court's premature issuance of a mandate does not confer jurisdiction upon a lower court to act on a matter still subject to a pending motion for rehearing.
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Join FLexlaw to unlock all legal intelligence“the postconviction court lacked jurisdiction to consider claim one of Norwood's motion while rehearing of that same claim was pending in this court”
Establishes the jurisdictional principle that a post-conviction court cannot act while an appeal of its orders is pending.
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Join FLexlaw to unlock all legal intelligenceNorwood filed a motion for post-conviction relief in November 2006 with twelve grounds. In August 2007, the post-conviction court summarily denied nin…
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Todd Kevin Norwood appeals the post-conviction court’s order vacating all of the orders it entered while a motion for rehearing was pending in this court. We affirm but remand with directions.
Norwood filed a motion for postconviction relief in November 2006 raising twelve grounds for relief. In August 2007, the postconviction court summarily denied nine of the claims and ordered an eviden-tiary hearing on the remaining three claims. In May 2008, the postconviction court denied the remaining claims after an evidentiary hearing. Norwood appealed this final order.
On May 7, 2010, this court issued an opinion reversing the summary denial of claim one of Norwood’s motion, which alleged that counsel was ineffective for failing to allege a violation of his right to speedy trial, and we remanded for the postconviction court to give Norwood leave to amend this claim pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). Both Norwood and the State filed motions for rehearing. This court denied Norwood’s motion for rehearing. Mandate was then inadvertently issued on August 18, 2010, even though the State’s motion for rehearing remained pending.
Based on the issuance of our mandate, the postconviction court assumed it had jurisdiction, and it entered several orders relating to claim one of Norwood’s motion. Ultimately, it scheduled an evidentiary hearing on claim one and appointed counsel for Norwood. However, before that hearing could be held in the postconviction court, this court granted the State’s motion for rehearing in the still-pending appeal, withdrew the May 7, 2010, opinion, and affirmed the postconviction court’s original denial of claim one. Mandate issued on April 12, 2011.
After this “second” mandate issued, the postconviction court entered an order vacating all of the orders it had entered as a result of the mandate erroneously issued on August 18, 2010. This was proper because the postconviction court lacked jurisdiction to consider claim one of Norwood’s motion while rehearing of that same claim was pending in this court. Cf. Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010) (holding that the postconviction court has no jurisdiction to consider a motion for postconviction relief while an earlier disposition of that motion is pending in this court).
However, in reliance on the postconviction court’s orders entered after this court’s premature issuance of mandate, Norwood has now amended claim one to be facially sufficient. Therefore, under the unique circumstances of this case, on remand the postconviction court should consider the merits of claim one of Norwood’s motion.
Affirmed.
NORTHCUTT and WALLACE, JJ., Concur.
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Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Havens v. State, 27 So. 3d 803 (Fla. 2d DCA 2010)