McDaniel v. State

789 So. 2d 1223, 2001 Fla. App. LEXIS 10263, 2001 WL 826728

Opinion

PER CURIAM.

Appellant seeks review of a final order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. When the trial court denied the motion, appellant’s direct appeal from his convictions and sentences was pending review in the supreme court. McDaniel v. State, 790 So.2d 441 (Fla. 1st DCA 2000), review denied, No. SC00-895, 791 So.2d 1099 (Fla. June 20, 2001). Therefore, the trial court lacked jurisdiction to rule on the motion. Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998) (trial court lacks jurisdiction to consider post-conviction motion while a direct appeal is still pending). Accordingly, we reverse the order, and remand with directions that the trial court again consider and rule upon the motion now that appellant’s direct appeals have been exhausted.

REVERSED and REMANDED, with directions.

WEBSTER, BROWNING and POLSTON, JJ., CONCUR.