Gobie v. State

188 So. 2d 34, 1966 Fla. App. LEXIS 5058

Opinions

PER CURIAM.

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 authority 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.