Harpham v. State

415 So. 2d 863 (1982)

David M. HARPHAM, Appellant,
v.
STATE of Florida, Appellee.

No. 82-686.

District Court of Appeal of Florida, Fifth District.

June 23, 1982.

Charles A. Tabscott, Orlando, for appellant.

No appearance for appellee.

ORFINGER, Judge.

The trial court was correct in holding that it has no jurisdiction to consider a motion for collateral relief under Florida Rule of Criminal Procedure 3.850 while an appeal from appellant's conviction is pending in this court. Fick v. State, 388 So. 2d 1352 (Fla. 5th DCA 1980).

Procedurally, a request for a new trial based on newly discovered evidence is not properly brought under Rule 3.850. The correct way to seek relief on this ground is by a petition for writ of error coram nobis containing the necessary allegations. See Smith v. State, 400 So. 2d 956 (Fla. 1981); Hallman v. State, 371 So. 2d 482 (Fla. 1979).

The order of the trial court denying petitioner's Rule 3.850 motion is AFFIRMED.

FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.