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Wells v. State

District Court of Appeal of Florida, Fourth District
Sep 6, 1978
362 So. 2d 441 (Fla. Dist. Ct. App. 1978)

Summary

holding that a trial court has no jurisdiction to rule on second motion to vacate after notice of appeal was filed for first motion to vacate, adopting Gobie

Summary of this case from Bryant v. State

Opinion

No. 77-2497.

September 6, 1978.

Appeal from the Circuit Court, Orange County, Cecil H. Brown, J.

Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.


ON MOTION TO DISMISS OR QUASH

Appellee has moved to dismiss this appeal on the ground the Circuit Court did not have jurisdiction to enter the order appealed from and thus it is a nullity not subject to appeal.

On June 12, 1975, the trial court entered a judgment and sentence against appellant. On December 16, 1976, the trial court denied a motion to vacate that judgment and sentence. On December 28, 1976, appellant appealed that order. While that appeal was pending appellant filed a second motion to vacate the judgment and sentence based upon different grounds than those stated in the original motion to vacate. This second motion was denied November 10, 1977. On November 29, 1977, this court dismissed the appeal from the order denying the first motion to vacate.

On similar facts, the Third District Court of Appeal held that upon the filing of the notice of appeal to review the order denying the first motion to vacate the cause was transferred to the appellate court, and the trial court was thereafter without jurisdiction to vacate. Gobie v. State, 188 So.2d 34 (Fla. 3rd DCA 1966). We agree with that decision and hold the trial court in this case had no jurisdiction to enter the order on the second motion to vacate, thus that order is a nullity and not subject to appeal.

Accordingly, the motion to dismiss is granted.

DOWNEY, C.J., and ANSTEAD and MOORE, JJ., concur.


Summaries of

Wells v. State

District Court of Appeal of Florida, Fourth District
Sep 6, 1978
362 So. 2d 441 (Fla. Dist. Ct. App. 1978)

holding that a trial court has no jurisdiction to rule on second motion to vacate after notice of appeal was filed for first motion to vacate, adopting Gobie

Summary of this case from Bryant v. State

In Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978), we held that the trial court could not rule on a second post-conviction motion to vacate a conviction, while an appeal was pending in this court from an order denying an earlier motion to vacate based on different grounds.

Summary of this case from Washington v. State

In Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978), we held that the trial court could not rule on a second post-conviction motion to vacate a conviction, while an appeal was pending in this court from an order denying an earlier motion to vacate based on different grounds.

Summary of this case from Washington v. State

In Wells, we characterized the trial court's order on the second motion as a nullity, which would indicate lack of subject matter jurisdiction; however, subject matter jurisdiction is the power of a court to hear that type of case.

Summary of this case from Washington v. State
Case details for

Wells v. State

Case Details

Full title:CHRISTOPHER J. WELLS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Sep 6, 1978

Citations

362 So. 2d 441 (Fla. Dist. Ct. App. 1978)

Citing Cases

Bryant v. State

In an era when a time limit for filing postconviction motions did not exist, this rule may occasionally have…

Washington v. State

Appellant appeals that order. In Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978), we held that the trial…