MICHAEL MASSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Massey appealed the denial of his second Rule 3.850 post-conviction motion challenging the voluntariness of his guilty plea. The trial court denied the motion without an evidentiary hearing on the ground that it had previously entertained a similar motion. The appellate court affirmed, holding that the trial court retained jurisdiction to entertain collateral attacks on a judgment even while a non-appealable direct appeal was pending.
The trial court retained jurisdiction to entertain a motion collaterally attacking the judgment during the pendency of a direct appeal from an order or judgment that is clearly non-appealable. Therefore, the trial court did not lose jurisdiction merely because the direct appeal was pending, and the order denying the second 3.850 motion without an evidentiary hearing was properly entered.
[1] A trial court retains jurisdiction to entertain a motion collaterally attacking a judgment during the pendency of a direct appeal from a clearly non-appealable order or j…
[2] A dismissal of a direct appeal without prejudice to filing a motion for post-conviction relief does not preclude a subsequent motion for post-conviction relief.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial judge had jurisdiction to entertain a motion collaterally attacking the judgment during the pendency of a direct appeal from an order or judgment which was clearly non-appealable”
Establishes the core holding that trial court jurisdiction over collateral motions is not divested by a pending non-appealable appeal
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Join FLexlaw to unlock all legal intelligenceMassey filed a guilty plea and was convicted. He filed a direct appeal from the judgment of conviction, which was subsequently dismissed without preju…
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PER CURIAM:
Appellant appeals the denial, without evidentiary hearing, of his second 3.850 motion challenging the voluntariness of his guilty plea. That motion was denied on the ground that the court previously entertained a motion for similar relief on behalf of the same prisoner. The earlier 3.850 motion, which was entertained during the pendency of a direct appeal from the judgment of conviction, was denied because the motions, files, and records in the case conclusively showed that appellant was entitled to no relief. Appellant’s direct appeal of his conviction was dismissed. This court’s order of dismissal was without prejudice to appellant’s right to file a motion for post- conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, because “no direct appeal lies from a judgment and sentence based on a guilty plea, Rule 9.140(b), Fla.R.App.P., and because appellant failed to make a prior motion to withdraw his guilty plea in the court below. Robinson v. State, 373 So. 2d 898 (Fla.1979).”
The issue thus presented is whether the appeal of a non-appealable order or judgment divests the trial court of jurisdiction while that appeal is outstanding and prior to dismissal of the appeal.
In his second motion for post-conviction relief, appellant referred to his earlier filed 3.850 motion only insofar as to state that it “was filed but jurisdiction was not invoked since the case was actively pending in the First DCA.” If the trial judge did not in fact have jurisdiction to entertain a 3.850 motion during the pendency of an appeal, then the grounds upon which the trial judge denied the subsequently filed 3.850 motion, which is the subject of this appeal, are in error. We find, however, that the trial judge had jurisdiction to entertain a motion collaterally attacking the judgment during the pendency of a direct appeal from an order or judgment which was clearly non-appealable. See, United States v. Hitchmon, 602 F. 2d 689, 691 (C.A. 5th Cir.1979) (en banc). Accordingly, the order of the trial judge denying, without evidentiary hearing, appellant’s 3.850 motion on the ground above stated is affirmed.
MILLS, BOOTH and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979)