Dickerson v. State

509 So. 2d 1390, 12 Fla. L. Weekly 1821, 1987 Fla. App. LEXIS 9670

Opinion

WIGGINTON, Judge.

We affirm the trial court’s holding that it had no jurisdiction to consider appellant’s motion for post-conviction relief, since the motion was filed during the pendency of appellant’s direct appeal in this Court. Carrin v. State, 459 So.2d 430 (Fla. 1st DCA 1984); Harpham, v. State, 415 So.2d 863 (Fla. 5th DCA 1982); cf. Bryan v. State, 470 So.2d 864 (Fla. 2d DCA 1985). However, our affirmance is without prejudice to appellant’s presenting the issues raised in a proper Fla.R.Crim.P. 3.850 motion.¹

JOANOS and ZEHMER, JJ., concur.

1 . We note that appellant's notice of appeal appears to be untimely filed. However, the trial court failed to include in its order " 'a statement that the movant ha[d] the right to appeal within 30 days of the rendition of the order,’ ” as required by Fla.R.Crim.P. 3.850. Williams v. State, 454 So.2d 756, 757, n. 1 (Fla. 1st DCA 1984). Therefore, the appeal is correctly treated as one timely filed. Id