Carrin v. State

459 So. 2d 430, 9 Fla. L. Weekly 2413, 1984 Fla. App. LEXIS 16600

Opinion

WENTWORTH, Judge.

Appellant seeks review of the denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. The motion was filed in the lower court during the penden-cy of appellant’s direct appeal; in such circumstances the lower court is without jurisdiction to grant post-conviction relief and such a motion is therefore properly denied. See Hurst v. State, 379 So.2d 434 (Fla. 1st DCA 1980). Should appellant desire to pursue such relief during the pend-ency of a direct appeal a request may be filed in the appellate court to temporarily relinquish jurisdiction for the lower court to consider a Rule 3.850 motion.

The order appealed is affirmed without prejudice to appellant’s ability to present the issues raised in a proper Fla.R.Crim.P. 3.850 motion.

SHIVERS and NIMMONS, JJ., concur.