Ortiz v. State

768 So. 2d 1177, 2000 WL 1299775

Opinion

768 So.2d 1177 (2000)

Rafael ORTIZ, Appellant,
v.
STATE of Florida, Appellee.

No. 2D00-892.

District Court of Appeal of Florida, Second District.

September 15, 2000.

PER CURIAM.

Rafael Ortiz appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court correctly found that the "defendant's case is currently on appeal which divests the trial court of the power to go forward on defendant's motion." See Daniels v. State, 712 So.2d 765 (Fla.1998) (holding that during pendency of defendant's direct appeal trial court is without jurisdiction to rule on motion for postconviction relief). However, this court has held that "such a prematurely filed motion should be dismissed rather than denied because a denial generally serves as a ruling on the merits." Wells v. State, 736 So.2d 24, 25 (Fla. 2d DCA 1999). We therefore reverse the order of the trial court and remand to the trial court with instructions to dismiss Ortiz's motion. Ortiz may refile his motion when the direct appeal is final.

Reversed and remanded.

PATTERSON, C.J., and BLUE and NORTHCUTT, JJ., Concur.