BENNIE W. BROOKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court held that the trial court lacked jurisdiction to entertain a motion to vacate judgment and sentence while certiorari proceedings were pending.
Appellant filed a motion to vacate judgment and sentence while a petition for writ of certiorari was pending in the United States Supreme Court, revie…
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This is an appeal from an order denying appellant’s motion to vacate judgment and sentence filed pursuant to Criminal Procedure Rule One, Chapter 924, F.S.A., Appendix.
A review of the record and briefs filed herein reveals that the appellant filed his motion to vacate at a time when there was pending a review of this court’s affirmance of his conviction on direct appeal, reported at 192 So.2d 96, cert. denied, Fla., 196 So.2d 920. The review proceedings pending consisted of a petition for writ of certiorari filed in the United States Supreme Court.
In Grizzell v. State, 187 So.2d 342, we held that a motion to vacate judgment and sentence under Criminal Procedure Rule One will not be entertained during the pen-dency of a review of the same judgment by direct appeal. The instant case is postured like Grizzell, supra, except that here at the time the postconviction motion was filed there was pending a further review of the direct appeal via certiorari proceedings.
In view of the pendency of the certiorari proceedings in the appellate courts at the time the Rule One motion was filed in the trial court, that tribunal was without jurisdiction to entertain the. motion; and, therefore, its order denying the motion to vacate was well founded.
While the State .has not filed a motion to dismiss the instant appeal for want of jurisdiction, it is our opinion that we have no jurisdiction to consider this matter; and, hence, we enter our sua sponte order dismissing this cause on authority of Grizzell, supra.
WIGGINTON, C. J., and CARROLL, DONALD K., and SPECTOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Meneses, 392 So. 2d 905 (Fla. 1981)…filing with us ousts or forestalls what would otherwise be a proper invocation of the trial court’s jurisdiction. I do not think the trial court’s judicial power is either ousted or forestalled in those cases, and I find nothing in Brooks v. State, 209 So. 2d 271 (Fla. 1st DCA 1971), to persuade me to the contrary. First, it is essential to keep in perspective the nature of the relief requested of this Court in those situations, for it must be remembered that there is no right of review from the affirmance…1 / 3
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Kynyodda Deonne Jones v. State, 922 So. 2d 1088 (Fla. 4th DCA 2006)…rtiorari filed in the Supreme Court is unpersuasive. While a petition for writ of certiorari tolls the time for filing collateral proceedings, such as Rule 3.850 motions, see Barkett v. State, 728 So. 2d 792 (Fla. 1st DCA 1999), and Brooks v. State, 209 So. 2d 271 (Fla. 1st DCA 1968), such a petition is wholly different from a petition for belated appeal. A petition for writ of certiorari, like the motions listed in Rule 9.020(h), directly challenges a ruling that precedes the final order; a petition for bela…
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Meneses v. State, 372 So. 2d 1152 (Fla. 3d DCA 1979)…e denial of an earlier motion under the rule was still pending. . It seems far more likely that a 3.850 motion would result in obviating the necessity of ruling on a petition for certiorari, than the reverse. . We acknowledge that Brooks v. State, 209 So. 2d 271 (Fla.lst DCA 1968), which holds that even the pendency of a petition for certiorari in the United States Supreme Court ousts the trial court of jurisdiction to consider a 3.850 motion, is contrary to this conclusion. We think Brooks was wrongly deci…1 / 3
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Buford Dalton Blackman v. City OF Gainesville, 187 So. 2d 342 (Fla. 1st DCA 1966)
- Grizzell v. State, 187 So. 2d 342 (Fla. 1st DCA 1966)
- Bishoff v. Avery M. Bishoff, 192 So. 2d 96 (Fla. 4th DCA 1966)
- Birmingham v. The Fla. Real Est. Comm'n & Cornelius L. Reagan, 192 So. 2d 96 (Fla. 3d DCA 1966)
- Moseley v. State, 196 So. 2d 920 (Fla. 1967)
- Zieman v. State, 196 So. 2d 920 (Fla. 1967)