Burch v. State

721 So. 2d 1198 (1998)

Thomas J. BURCH, Appellant,
v.
STATE of Florida, Appellee.

No. 97-4555.

District Court of Appeal of Florida, First District.

November 19, 1998.

Appellant, pro se.

Robert Butterworth, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court was correct in ruling that it lacked jurisdiction to consider appellant's postconviction motion because appellant's direct appeal was still pending.^[1] However, the trial court should have dismissed rather than denied appellant's motion because a denial generally serves as a ruling on the merits precluding the refiling of a successive motion. See, e.g., Daniels v. State, 712 So. 2d 765 (Fla.1998) (quashing district court opinion affirming and remanding for vacation of trial court's order of denial, where postconviction motion was prematurely filed while direct appeal was still pending). Accordingly, we quash the order of denial. Our disposition is without prejudice to appellant timely refiling his motion with the trial court if he has not done so already.

ORDER QUASHED.

MINER and LAWRENCE, JJ., and McDONALD, PARKER LEE, Senior Judge, concur.

NOTES

[1] Appellant's direct appeal has since concluded with mandate issued March 12, 1998.