Opinion
Case No. 4D04-1087.
Opinion Filed April 14, 2004.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 01-12960 CF10A.
Samuel Ross, Jasper, pro se.
No appearance required for appellee.
Samuel Ross appeals an order entered January 9, 2004, summarily denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court was without jurisdiction to rule on this motion because Ross's direct appeal is still pending before this court, filed through counsel on October 2, 2003. See Cazeau v. State, 858 So.2d 1213 (Fla. 4th DCA 2003).
Therefore, as we did in Cazeau, we vacate the January 9, 2004 order and direct the trial court to dismiss the motion without prejudice. Ross shall be allowed to refile, without the penalties affixed to successive motions as announced in rule 3.850(f), after this court issues its mandate in the pending case, 4D03-3838. See id.; Daniels v. State, 712 So.2d 765 (Fla. 1998).
GUNTHER, STEVENSON and TAYLOR, JJ., concur.