Leonard v. State

District Court of Appeal of Florida

Leonard v. State

835 So. 2d 1210, 2003 Fla. App. LEXIS 99, 2003 WL 57002

CourtDistrict Court of Appeal of Florida

DecidedJanuary 8, 2003

DocketNo. 4D02-2003

StatusPublished

Cited by1 cases

This text of 835 So. 2d 1210 (Leonard v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Leonard v. State, 835 So. 2d 1210, 2003 Fla. App. LEXIS 99, 2003 WL 57002 (Fla. Ct. App. 2003).

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Opinion

PER CURIAM.

Bradley Leonard appeals an order entered March 12, 2002, by the Broward County Circuit Court, summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. At the time the motion was filed and at the time the trial court ruled, appellant’s direct appeal from the revocation of his probation and the order denying his rule 3.800(b) motion for additional jail credit against his newly imposed sentence was pending in this court.¹ The trial court’s lack of jurisdiction at the time it entered the order on appeal rendered the order a nullity. See Daniels v. State, 712 So.2d 765, 765 (Fla.1998).

Accordingly, we vacate the March 12, 2002, order and direct the trial court on remand either to dismiss the motion with leave to refile, or to enter a new ruling on the motion. See Perez v. State, 834 So.2d 882, 882-83 (Fla. 4th DCA 2002) (en banc) (receding from Wilcher v. State, 805 So.2d 74 (Fla. 4th DCA 2002), to the extent this court held in Wilcher that the proper remedy in such cases is dismissal, explaining that dismissal is not required, but “when the trial court is precluded by a pending appeal from ruling on a motion for post-conviction relief, the better procedure is to stay the post-conviction relief motion rather than dismiss it for lack of jurisdiction”).

POLEN, C.J., FARMER and GROSS, JJ., concur.

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PER CURIAM.

Bradley Leonard appeals an order entered March 12, 2002, by the Broward County Circuit Court, summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. At the time the motion was filed and at the time the trial court ruled, appellant’s direct appeal from the revocation of his probation and the order denying his rule 3.800(b) motion for additional jail credit against his newly imposed sentence was pending in this court.¹ The trial court’s lack of jurisdiction at the time it entered the order on appeal rendered the order a nullity. See Daniels v. State, 712 So.2d 765, 765 (Fla.1998).

Accordingly, we vacate the March 12, 2002, order and direct the trial court on remand either to dismiss the motion with leave to refile, or to enter a new ruling on the motion. See Perez v. State, 834 So.2d 882, 882-83 (Fla. 4th DCA 2002) (en banc) (receding from Wilcher v. State, 805 So.2d 74 (Fla. 4th DCA 2002), to the extent this court held in Wilcher that the proper remedy in such cases is dismissal, explaining that dismissal is not required, but “when the trial court is precluded by a pending appeal from ruling on a motion for post-conviction relief, the better procedure is to stay the post-conviction relief motion rather than dismiss it for lack of jurisdiction”).

POLEN, C.J., FARMER and GROSS, JJ., concur.

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835 So. 2d 1210, 2003 Fla. App. LEXIS 99, 2003 WL 57002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-v-state-fladistctapp-2003.

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