Hull v. State

629 So. 2d 1113, 1994 Fla. App. LEXIS 172, 1994 WL 11634

Opinion

ALLEN, Judge.

The appellant challenges the lower court’s dismissal of a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The court dismissed this motion because the appellant had a pending appeal challenging the court’s denial of a Florida Rule of Criminal Procedure 3.230 motion to disqualify the judge assigned to the case. Although a pending appeal as to the underlying conviction and sentence would preclude the lower court’s jurisdiction to consider a rule 3.850 motion, see Bryan v. State, 470 So.2d 864 (Fla. 2d DCA1985), the appeal of a motion to disqualify does not have such absolute pre-clusive effect. See Fla.R.App.P. 9.130(f). The lower court thus should have retained jurisdiction, and should not have dismissed the appellant’s rule 3.850 motion for post-conviction relief.

The appealed order is reversed, and the cause remanded.

ERVIN and SMITH, JJ., concur.