Opinion
No. 1D10-0459.
March 17, 2010.
Petition for Writ of Mandamus — Original Jurisdiction.
Tony C. Jackson, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
Now pending before this court is petitioner's appeal from his judgment and sentence in case number 1D09-0313. He petitions this court for a writ of mandamus to compel the Circuit Court for Taylor County to rule on his filings, including a notice of voluntary dismissal of the aforementioned appeal and a motion to correct illegal sentence. We deny the petition because the pending direct appeal divests the circuit court of jurisdiction to consider the rule 3.800(a) motion. Bizzell v. Stats, 912 So.2d 386 (Fla. 2d DCA 2005). The notice of voluntary dismissal did not change this result because it was filed in the wrong forum, the circuit court, and did not result in closure of case number 1D09-0313.
Petitioner having failed to demonstrate any ministerial duty which the circuit court has failed to perform, the petition for writ of mandamus is denied. This disposition is without prejudice to petitioner's right to properly voluntarily dismiss case number 1D09-0313 and thereafter request the circuit court to rule on his 3.800 motion.
PETITION DENIED.
DAVIS, BENTON, and MARSTILLER, JJ., concur.