JAMES R. MORROW, JR.

v.

STATE OF FLORIDA

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Michael P. McDaniel, Judge. LaROSE, Judge. James R. Morrow, Jr., appeals the postconviction court's February 18, 2022, order denying his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the postconviction court lacked jurisdiction to deny the motion, we reverse and remand. In October 2021, Mr. Morrow filed a motion for correction of jail credit, pursuant to Florida Rule of Criminal Procedure 3.801.

He claimed that he was awarded only one day of jail credit but was entitled to an additional 126 days. Mr. Morrow specified dates and locations for which he claimed the additional credit. The postconviction court denied the motion in November 2021. Mr. Morrow appealed that order in December 2021. See Morrow v. State, 334 So. 3d 386, 387 (Fla. 2d DCA 2022).

In January 2022, while that appeal was pending, Mr. Morrow filed his rule 3.800(a) motion. He argued that the written judgment and sentence do not conform to the oral pronouncement at sentencing. Specifically, he alleged that "[a]t sentencing, [he] was sentenced with credit for all time served in jail prior to going to jail," but that on his written sentence, "he was given (1) day of jail credit," which he asserted was error. He insisted that he was entitled to an additional 127 days of jail credit, citing the same dates and locations of incarceration listed in his rule 3.801 motion.¹

February 18, 2022, the postconviction court denied the rule 3.800(a) motion as meritless. This appeal followed. "[A] trial court has authority to consider . . . a subsequently filed postconviction motion that raises unrelated issues notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion." Jackman v. State, 88 So. 3d 325, 327 (Fla. 4th DCA 2012); see also Cannie v. State, 277 So. 3d 754, 755 (Fla. 1st DCA 2019) ("We have held that 'an appeal of a postconviction relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated.' " (quoting Bates v. State, 704 So. 2d 562, 562 (Fla. 1st DCA 1997))).

But, "if the subsequent motion raises the same or related issues to those on appeal, the trial court may not consider the merits while the related appeal is pending." Jackman, 88 So. 3d at 327. "[A]n appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal." Kimmel v. State, 629 So. 2d 1110, 1111 (Fla. 1st DCA 1994) (citing Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979)); see, e.g., Hester v. State, 312 So. 3d 173, 175 (Fla. 1st DCA 2021) (" '[W]hen the jurisdiction of the appellate court attaches, it is exclusive as to the subject covered by the appeal.' Conversely, though, that jurisdiction is not exclusive as to those matters not covered by the appeal." (quoting Willey v. W.J. Hoggson Corp., 105 So. 126, 128 (Fla. 1925))).

The order denying Mr. Morrow's rule 3.801 motion to correct jail credit was on appeal when the postconviction court denied Mr. Morrow's rule 3.800(a) motion to correct illegal sentence. Although brought under different rules, the claims were the same; both sought additional jail credit for the exact same dates and locations of incarceration.

Therefore, the postconviction court lacked jurisdiction to rule upon the merits of the illegal sentence motion. See Jackman, 88 So. 3d at 327.

Accordingly, we reverse the February 18, 2022, order and remand for the postconviction court to reconsider Mr. Morrow's motion now that it has regained jurisdiction following issuance of this court's mandate in April 2022. Morrow, 334 So. 3d at 386; see State v. Miyasato, 805 So. 2d 818, 824 (Fla. 2d DCA 2001) ("In general, the mandate in any case functions to end the jurisdiction

of the appellate court and to return full jurisdiction of the case to the trial court.").

We note that Mr. Morrow failed to attach the sentencing transcript to his rule 3.800(a) motion. On remand, the postconviction court may address Mr. Morrow's "argument on the merits if the pertinent portions of the record, specifically the sentencing transcript, appear in the court file." See Taylor v. State, 145 So. 3d 948, 950 (Fla. 1st DCA 2014); see also Fla. R. Crim. P. 3.800(a)(1) ("A court may at any time correct an illegal sentence imposed by it . . . when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief . . . ."). If the transcript is not in the court file, the postconviction court may deny the motion without prejudice for Mr. Morrow "to file an amended motion attaching the sentencing transcript." See Taylor, 145 So. 3d at 950.

Reversed and remanded. NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication.