Libby v. State

520 So. 2d 322, 1988 WL 13723

Opinion

520 So.2d 322 (1988)

Charles R. LIBBY, Appellant,
v.
STATE of Florida, Appellee.

No. 88-317.

District Court of Appeal of Florida, Second District.

February 26, 1988.

PER CURIAM.

This is an appeal from the trial court's summary denial, on the merits, of appellant's Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of appellant's motion, not on the merits of the allegations raised therein, but because the trial court lacked jurisdiction to entertain the motion.

Appellant filed his rule 3.850 motion in the trial court on October 21, 1987. In his motion he alleged that an appeal from his judgment and sentence was pending in this court. Our court records reveal that appellant's notice of appeal was filed in the trial court on August 11, 1987, and is currently pending disposition here.

The supreme court has held that "while appeal proceedings or certiorari proceedings are pending in an appellate court, the trial court is without jurisdiction to entertain a motion to vacate." State v. Meneses, 392 So.2d 905, 907 (Fla. 1981). Accordingly, we affirm the trial court's denial of appellant's rule 3.850 motion without prejudice to appellant (1) filing another such motion after his present appeal has been decided and has become final or (2) as recognized in Meneses, seeking an order from this court to temporarily relinquish jurisdiction to the trial court for the purpose of being heard on his motion.

RYDER, A.C.J., and LEHAN and PARKER, JJ., concur.