Slater v. State

509 So. 2d 395, 12 Fla. L. Weekly 1650, 1987 Fla. App. LEXIS 9251

• Court: District Court of Appeal of Florida
• Decided: July 8, 1987
• Docket: No. 4-86-2407
• Status: Published

Opinion

PER CURIAM.

This is an appeal from denial of a motion for relief under rule 3.850, Florida Rules of Criminal Procedure. The stated basis for denial was the pendency of a direct appeal which precludes simultaneous collateral attack on the same judgment or order. The circuit court correctly relied on Harpham v. State, 415 So.2d 863 (Fla. 5th DCA 1982), for that proposition.

Attached to the lower court’s order of denial is a Notice of Appeal which involves the denial of another 3.850 motion rather than a direct appeal of the conviction or sentence. Consequently, from this record, it appears that Harpham has no application to this case.

Apparently there have been two attempts by appellant to perfect a direct appeal from his conviction and sentence. Both were abortive and neither was in progress at the time the order appealed here was entered.

We do not intend by this opinion to preclude inquiry into the question whether there was in fact a direct appeal in progress. Nor do we foreclose the possibility that the grounds for relief urged in the present motion have been exhausted by presentation in a previous motion under the rule.

We hold simply that from the record in its present posture, denial of the motion on either of these grounds has not been substantiated.

We reverse and remand to permit further consideration of appellant’s application for relief and appropriate disposition.

REVERSED and REMANDED.

HERSEY, C.J., and LETTS and GLICKSTEIN, JJ., concur.