Summary
quashing the trial court's orders on the appellant's rule 3.800 motion seeking additional jail credit, which it had treated as a rule 3.801 motion, without prejudice to the appellant filing a rule 3.800(b) motion or a rule 3.801 motion after the direct appeal concluded
Summary of this case from Mason v. StateOpinion
Nos. 1D14–3399 1D14–3437.
2015-01-6
Scottie D. LOWE, Appellant, v. STATE of Florida, Appellee.
An appeal from an order of the Circuit Court for Leon County. James C. Hankinson, Judge. Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
An appeal from an order of the Circuit Court for Leon County. James C. Hankinson, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
In these consolidated postconviction appeals, Appellant seeks review of the trial court's orders denying his pro se rule 3.800(a) motion seeking additional jail credit in case numbers 2007–CF–4046 and 2013–CF–1708. Although the trial court properly treated the motion as having been filed under rule 3.801, we quash the orders denying the motion because the trial court lacked jurisdiction to rule on the motion while the direct appeal of Appellant's judgment and sentence in these cases was pending in this court. See Day v. State, 770 So.2d 1262 (Fla. 1st DCA 2000) (affirming order dismissing rule 3.800(a) motion for lack of jurisdiction because, after the adoption of rule 3.800(b)(2), “a party may not file a rule 3.800(a) [motion] during the pendency of a direct appeal”); Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998) (quashing order denying postconviction motion that was entered while direct appeal was pending and explaining that “the trial court should have dismissed rather than denied [the] motion because a denial generally serves as a ruling on the merits precluding the refiling of a successive motion”). This disposition is without prejudice to Appellant seeking the additional jail credit in a rule 3.801 motion filed after the direct appeal is concluded or in a rule 3.800(b)(2) motion filed before the initial brief in the direct appeal, case number 1D13–4567.
We decline the State's invitation to construe the motion denied by the trial court as having been filed under rule 3.800(b)(2) because the trial court did not do so and, moreover, the notice and service requirements in that rule were not followed. SeeFla. R. Crim. P. 3.800(b)(2) (requiring notice of the motion to be filed in the direct appeal) and (b)(2)(A) (requiring the motion to be served on all trial and appellate counsel of record).
ORDERS QUASHED.
BENTON, WETHERELL, and SWANSON, JJ., concur.