Scottie D. Lowe v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SCOTTIE D. LOWE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NOS. 1D14-3399 & 1D14-3437
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 6, 2015.
An appeal from an order of the Circuit Court for Leon County.
James C. Hankinson, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
In these consolidated postconviction appeals, Appellant seeks review of the
trial court’s orders denying his pro se rule 3.800(a) motion seeking additional jail
credit in case numbers 2007-CF-4046 and 2013-CF-1708. Although the trial court
properly treated the motion as having been filed under rule 3.801, we quash the
orders denying the motion because the trial court lacked jurisdiction to rule on the
motion while the direct appeal of Appellant’s judgment and sentence in these cases
was pending in this court. See Day v. State, 770 So. 2d 1262 (Fla. 1st DCA 2000)
(affirming order dismissing rule 3.800(a) motion for lack of jurisdiction because,
after the adoption of rule 3.800(b)(2), “a party may not file a rule 3.800(a) [motion]
during the pendency of a direct appeal”); Burch v. State, 721 So. 2d 1198 (Fla. 1st
DCA 1998) (quashing order denying postconviction motion that was entered while
direct appeal was pending and explaining that “the trial court should have
dismissed rather than denied [the] motion because a denial generally serves as a
ruling on the merits precluding the refiling of a successive motion”). This
disposition is without prejudice to Appellant seeking the additional jail credit in a
rule 3.801 motion filed after the direct appeal is concluded or in a rule 3.800(b)(2)
motion 1 filed before the initial brief in the direct appeal, case number 1D13-4567.
ORDERS QUASHED.
BENTON, WETHERELL, and SWANSON, JJ., CONCUR.
1
We decline the State’s invitation to construe the motion denied by the trial court
as having been filed under rule 3.800(b)(2) because the trial court did not do so
and, moreover, the notice and service requirements in that rule were not followed.
See Fla. R. Crim. P. 3.800(b)(2) (requiring notice of the motion to be filed in the
direct appeal) and (b)(2)(A) (requiring the motion to be served on all trial and
appellate counsel of record).
2