Opinion
No. 91-1650.
September 19, 1991.
Appeal from the Circuit Court, Marion County, William T. Swigert, Sr., J.
Rufus Young, pro se.
No appearance for appellee.
Rufus Young appeals the summary denial of his rule 3.850 motion. We affirm the denial without prejudice to Young to resubmit his motion to the trial court.
Our affirmance is based upon two grounds:
1. Young's motion failed to meet the requirements of rule 3.850, Florida Rules of Criminal Procedure, that it be made under oath and that it state whether there was an appeal from his judgment or sentence and whether a previous post-conviction motion had been filed. Deese v. State, 530 So.2d 384 (Fla. 1st DCA), rev. dismissed, 534 So.2d 398 (Fla. 1988).
2. Young's appeal of his judgment and sentence was pending at the time the 3.850 motion was filed; therefore, the trial court was without jurisdiction to entertain the motion. State v. Meneses, 392 So.2d 905 (Fla. 1981); Duenas v. State, 576 So.2d 435 (Fla. 2d DCA 1991). The motion was filed on March 5, 1991. Young filed his appeal of the original judgment in 1990, and this court affirmed that judgment on June 4, 1991. Young v. State, 580 So.2d 770 (Fla. 5th DCA 1991).
AFFIRMED.
DAUKSCH and W. SHARP, JJ., concur.