Summary
In Grizzell v. State, 187 So.2d 342, we held that a motion to vacate judgment and sentence under Criminal Procedure Rule One will not be entertained during the pendency of a review of the same judgment by direct appeal. The instant case is postured like Grizzell, supra, except that here at the time the postconviction motion was filed there was pending a further review of the direct appeal via certiorari proceedings.
Summary of this case from Brooks v. StateOpinion
No. H-416.
June 7, 1966. Rehearing Denied June 27, 1966.
Appeal from the Circuit Court, Volusia County, James T. Nelson, J.
Alfred E. Grizzell, in pro. per.
Earl Faircloth, Atty. Gen., and T.T. Turnbull, Asst. Atty. Gen., for appellee.
ON MOTION TO DISMISS
Grizzell filed a motion to vacate in the lower court pursuant to Criminal Procedure Rule 1, Ch. 924, F.S.A. Appendix. Upon consideration of the Rule 1 motion the lower court entered its order reciting that it could not entertain said motion because a direct appeal from Grizzell's criminal conviction was presently pending before the District Court of Appeal, First District, which order in effect denied the Rule 1 motion. From this order Grizzell then appealed to this Court, filed a brief and the State then filed a motion to quash or dismiss the appeal.
We are of the opinion that the lower court was correct in denying the Rule 1 motion because the direct appeal which is now pending in this court places all jurisdiction in this court until the determination of the appeal.
The motion to dismiss is hereby granted.
WIGGINTON, Acting C.J., CARROLL, DONALD K., and JOHNSON, JJ., concur.