KITCHEN v. STATE (2021)

District Court of Appeal of Florida, Third District.

John KITCHEN, Appellant(s)/petitioner(s), v. The STATE of Florida, Appellee(s)/respondent(s),

CASE NO.: 3D19-1722

Decided: April 15, 2021

Upon consideration of the appellant's pro se Motion for Clarification and the trial court's failure to comply with our March 11, 2021, Order, this Court notes that our March 11, 2021, Order does not appear in the trial court docket. We treat the appellant's pro se Motion for Clarification as a motion to enforce the Mandate issued on March 2, 2020.

Because it appears that the trial court has not been made aware of said Order, we hereby withdraw our March 11, 2021, Order and sua sponte consolidate this case with the appellant's additional appeal in case number 3D21-613, which addresses the petition for writ of habeas corpus filed in case number F18-22191, the same trial court case on appeal in case number 3D19-1722.

We previously determined that the trial court was without jurisdiction to rule on the petition on appeal (see Opinion, February 5, 2020) because it constituted a collateral attack on a conviction in the Eighteenth Judicial Circuit, and ordered the trial court to transfer the case to that Circuit. We now clarify this Court's February 5, 2020, Opinion and order the trial court to forthwith dismiss the petition below or transfer the same to the Eighteenth Judicial Circuit.

FERNANDEZ, LOGUE and LOBREE, JJ., concur.

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