No. J-192 | Fla. Dist. Ct. App. | Apr 23, 1968
This is an appeal from an order denying appellant’s motion to vacate judgment and sentence filed pursuant to Criminal Procedure Rule One, Chapter 924, F.S.A., Appendix.
A review of the record and briefs filed herein reveals that the appellant filed his motion to vacate at a time when there was pending a review of this court’s affirmance of his conviction on direct appeal, reported at 192 So. 2d 96" date_filed="1966-11-03" court="Fla. Dist. Ct. App." case_name="Birmingham v. Florida Real Estate Commission">192 So.2d 96, cert. denied, Fla., 196 So. 2d 920" date_filed="1967-01-15" court="Fla." case_name="Baker v. State">196 So.2d 920. The review proceedings pending consisted of a petition for writ of certiorari filed in the United States Supreme Court.
In Grizzell v. State, 187 So. 2d 342" date_filed="1966-06-07" court="Fla. Dist. Ct. App." case_name="Grizzell v. State">187 So.2d 342, we held that a motion to vacate judgment and sentence under Criminal Procedure Rule One will not be entertained during the pen-dency of a review of the same judgment by direct appeal. The instant case is postured like Grizzell, supra, except that here at the time the postconviction motion was filed there was pending a further review of the direct appeal via certiorari proceedings.
In view of the pendency of the certiorari proceedings in the appellate courts at the time the Rule One motion was filed in the trial court, that tribunal was without jurisdiction to entertain the. motion; and, therefore, its order denying the motion to vacate was well founded.
While the State .has not filed a motion to dismiss the instant appeal for want of jurisdiction, it is our opinion that we have no jurisdiction to consider this matter; and, hence, we enter our sua sponte order dismissing this cause on authority of Grizzell, supra.