Opinion
Case No. 1D02-2401
Opinion filed November 1, 2002.
An appeal from the Circuit Court for Duval County. Henry E. Davis, Judge.
Appellant, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
The appellant challenges the trial court's summary denial of his third and fourth motions for postconviction relief, brought pursuant to Florida Rule of Criminal Procedure 3.850, in which he sought to withdraw from his plea based upon ineffective assistance of counsel. Because the appellant's third motion raised some of these same claims of ineffective assistance of counsel as in his second motion, the denial of which was pending in this Court at the time the trial court ruled on the third motion, the trial court was without jurisdiction to rule on this third motion.Darling v. State, 799 So.2d 346 (Fla. 1st DCA 2001); McKeever v. State, 808 So.2d 286 (Fla. 1st DCA Mar. 15, 2002). Under such circumstances, the trial court was required to dismiss the appellant's third motion for lack of jurisdiction. See id. The appellant's fourth motion does not raise related claims but is untimely and an abuse of process; therefore, its denial is affirmed.
We accordingly vacate the portion of the order denying the third motion, affirm the part of the order denying the fourth motion, and remand for the trial court to dismiss the third motion.
VACATED in part, AFFIRMED in part, and REMANDED.
BARFIELD, MINER and POLSTON, JJ., CONCUR.