Pace v. State , 2005 Fla. App. LEXIS 20149 ( 2005 )

PALMER, J.

Christopher Pace has filed a pro se petition with this court requesting a writ of prohibition. The petition seeks to disqualify the trial judge, as well as all the other judges of the Eighteenth Judicial Circuit, from presiding over an evidentiary hearing that Pace claims will be held on December 28, 2005. The record discloses that the evidentiary hearing will be held pursuant to the trial court’s May 2, 2005 order granting Pace’s motion for rehearing as to one of three claims raised in his motion for post-conviction relief filed under rule 3.850 of the Florida Rules of Criminal Procedure. We deny the petition on procedural grounds as the record fails to demonstrate either that a proper motion to disqualify was filed by Pace below or that the trial court denied such a motion. See Fla. R. Jud. Admin. 2.160; see also Pierce v. State, 873 So.2d 618 (Fla. 2d DCA 2004).

In closing, we note that, at the time the May 2, 2005 order was entered by the trial court, this court had pending before it an appeal from the trial court’s summary denial of Pace’s rule 3.850 motion. The law is well established that, once an appeal is filed, the trial court loses jurisdiction with regard to the matter which is the subject of the appeal. As such, the May 2, 2005 order is a nullity. See Rivera v. State, 913 So.2d 769 (Fla. 5th DCA 2005); see also Fla. R.App. P. 9.600(b).

PETITION DENIED.

SHARP, W. and GRIFFIN, JJ., concur.