Newberry v. State

827 So. 2d 387, 2002 Fla. App. LEXIS 14583, 2002 WL 31255591

Opinion

PER CURIAM.

Appellant, Richard L. Newberry, appeals a circuit court order striking his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The circuit court struck the motion believing that it lacked jurisdiction due to a pending appeal by appellant from separate circuit court orders denying his 3.850 motion for post conviction relief. This was error as the motions were wholly unrelated. Cf. Norman v. State, 739 So.2d 1258 (Fla. 1st DCA 1999).

As the State now acknowledges, the circuit court had jurisdiction to entertain appellant’s rule 3.853 motion. Therefore, we reverse and remand for the trial court to conduct further proceedings on the motion.

REVERSED and REMANDED.

KLEIN, STEVENSON and HAZOURI, JJ., concur.