Opinion
No. 4D04-3325.
November 3, 2004.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack H. Cook, Judge; L.T. Case No. 00-12744 CFA02.
Robert J. Dugan, Jasper, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
Robert Dugan timely appeals the dismissal of his rule 3.850 motion. The circuit court dismissed the 3.850 motion for lack of jurisdiction because the appeal of a rule 3.800(a) motion was pending in this court. Dugan's 3.850 motion raised several claims of ineffective assistance of trial counsel, but none of the claims raised any issues related to his sentence.
The state concedes that the circuit court erred in dismissing the motion.
As this court observed in Hines v. State, 714 So.2d 605, 606 (Fla. 4th DCA), rev. dismissed, 727 So.2d 906 (1998), "an appeal of a post-conviction relief matter does not deprive the trial court of jurisdiction where, as here, the issues raised in the two cases are unrelated." See also Smith v. State, 858 So.2d 386 (Fla. 3d DCA 2003) (a pending appeal of a 3.850 motion did not deprive the trial court of jurisdiction to consider a 3.800 motion raising unrelated grounds); Bates v. State, 704 So.2d 562 (Fla. 1st DCA 1997) (holding the trial court did not lose jurisdiction to rule on a 3.850 motion while a 3.800 appeal raising an unrelated issue was pending in the district court).
Accordingly, the circuit court's order is reversed and this case is remanded for the court to consider Dugan's 3.850 motion on the merits.
REVERSED AND REMANDED.
KLEIN, GROSS and HAZOURI, JJ., concur.