WILCHER v. STATE (2002)

District Court of Appeal of Florida,Fourth District.

Horace WILCHER, Appellant, v. STATE of Florida, Appellee.

No. 4D01-3163.

Decided: January 16, 2002

Robert C. Stone of Law Offices of Robert C. Stone, Boca Raton, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

Because appellant's motion for relief pursuant to Florida Rule of Criminal Procedure 3.850 was pending during a time appellant's direct appeal was before this court, the trial court was without jurisdiction to rule on the motion, even though it was filed when no appeal was pending, and even though it was not ruled upon until after our mandate issued in the direct appeal, Wilcher v. State, 787 So.2d 150 (Fla. 4th DCA 2001). Accordingly, we remand to the trial court with directions to dismiss appellant's 3.850 motion, without prejudice for appellant to timely file a new motion in compliance with the rule.

PER CURIAM.

POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.

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