EDWARD GOBIE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal, Third District, dismissed an appeal from an order denying a second motion to vacate judgment and sentence. The court held that once the first appeal was filed, the trial court lost jurisdiction and could not issue a valid subsequent order.
No, the trial court did not have jurisdiction to rule on the second motion because the filing of the notice of appeal in the first case transferred jurisdiction to the appellate court.
“We hold that upon the filing of the notice of appeal in Case No. 65-837, the cause was transferred to the appellate court, and the trial court therefore no longer had jurisdiction and was without authority to enter the subsequent order of November 8, 1965.”
Establishes the court's reasoning regarding the loss of trial court jurisdiction upon filing an appeal.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a motion to vacate judgment and sentence, which was denied by the trial court. He appealed this denial. Subsequently, he filed a s…
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On September 27, 1965 the trial court denied the appellant’s motion to vacate judgment and sentence filed pursuant to Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix. The appellant filed his notice of appeal from that order of denial on October 7, 1965, and the cause is presently before this court as Gobie v. State, Fla.App., 188 So.2d 33 [Case No. 65-837, opinion filed June 21, 1966].
On October 21, 1965, the appellant filed a second motion to vacate the same judgments and sentences of the trial court, alleging different grounds. The trial court entered its order on November 8, 1965, denying the second motion to vacate. The appellant has appealed this order, and it is the second appeal which is the subject matter of this opinion.
We hold that upon the filing of the notice of appeal in Case No. 65-837, the cause was transferred to the appellate court, and the trial court therefore no longer had jurisdiction and was without *35authority to enter the subsequent order of November 8, 1965. State ex rel. Hall v. Lewis, 1924, 88 Fla. 146, 101 So. 199. While a prior appeal is still pending and effective, a subsequent appeal filed by the same party from the same judgment is irregular and will be dismissed. See DaCosta v. Dibble, 1902, 45 Fla. 225, 33 So. 466.
The order of November 8, 1965 was a brutum fulmen, and therefore not subject to an appeal.
Dismissed.
(dissenting).
A proceeding pursuant to Criminal Procedure Rule 1 is an independent action.1 Compare Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). Since the motions were based upon dissimilar grounds, the filing of the notice of appeal in the first cause did not terminate the trial court's jurisdiction to entertain a motion upon the new cause. I do not view this case as being a “subsequent appeal” from the “same judgment”.
PEARSON, Judge
(dissenting).
A proceeding pursuant to Criminal Procedure Rule 1 is an independent action.1 Compare Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). Since the motions were based upon dissimilar grounds, the filing of the notice of appeal in the first cause did not terminate the trial court's jurisdiction to entertain a motion upon the new cause. I do not view this case as being a “subsequent appeal” from the “same judgment”.
. “ * * * when the Florida courts are faced with questions regarding the application and interpretation of Rule No. 1, we should look to federal precedents and authorities as a guide.” Dickens v. State, Fla.App.1964, 165 So. 2d 811, 813.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Meneses, 392 So. 2d 905 (Fla. 1981)…rule. Until today, I had thought that such was the prevailing law on the subject. Now it appears that Brooks v. State, 209 So. 2d 271 (Fla. 1st DCA 1968), is no longer good law, and Barton v. State, 193 So. 2d 627 (Fla. 2d DCA 1966); Gobie v. State, 188 So. 2d 34 (Fla. 3d DCA 1966); and Grizzell v. State, 187 So. 2d 342 (Fla. 1st DCA 1966), are in serious doubt. I am not persuaded that we should turn an about face on such decisions in favor of a practice which is dubious at best, and, in all likelihood, will…
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Wells v. State, 362 So. 2d 441 (Fla. 4th DCA 1978)…t of Appeal held that upon the filing of the notice of appeal to review the order denying the first motion to vacate the cause was transferred to the appellate court, and the trial court was thereafter without jurisdiction to vacate. Gobie v. State, 188 So. 2d 34 (Fla. 3rd DCA 1966). We agree with that decision and hold the trial court in this case had no jurisdiction to enter the order on the second motion to vacate, thus that order is a nullity and not subject to appeal. Accordingly, the motion to dismiss…
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Gobie v. State, 188 So. 2d 33 (Fla. 3d DCA 1966)
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Andrews v. United States, 373 U.S. 334 (U.S. 1963)
- State v. Amos Lewis, 88 Fla. 146 (Fla. 1924)
- DaCosta v. Dibble, 45 Fla. 225 (Fla. 1903)
- Dickens v. State, 165 So. 2d 811 (Fla. 2d DCA 1964)
- Gobie v. State, 188 So. 2d 33 (Fla. 3d DCA 1966)