Gobie v. State
1966 Fla. App. LEXIS 5058
| Fla. Dist. Ct. App. | 1966

Lead Opinion

PER CURIAM.

On September 27, 1965 the trial court denied the appellant’s motion to vacate judgment and sentence filed pursuant to Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix. The appellant filed his notice of appeal from that order of denial on October 7, 1965, and the cause is presently before this court as Gobie v. State, Fla.App., 188 So.2d 33 [Case No. 65-837, opinion filed June 21, 1966].

On October 21, 1965, the appellant filed a second motion to vacate the same judgments and sentences of the trial court, alleging different grounds. The trial court entered its order on November 8, 1965, denying the second motion to vacate. The appellant has appealed this order, and it is the second appeal which is the subject matter of this opinion.

We hold that upon the filing of the notice of appeal in Case No. 65-837, the cause was transferred to the appellate court, and the trial court therefore no longer had jurisdiction and was without *35authority to enter the subsequent order of November 8, 1965. State ex rel. Hall v. Lewis, 1924, 88 Fla. 146, 101 So. 199. While a prior appeal is still pending and effective, a subsequent appeal filed by the same party from the same judgment is irregular and will be dismissed. See DaCosta v. Dibble, 1902, 45 Fla. 225, 33 So. 466.

The order of November 8, 1965 was a brutum fulmen, and therefore not subject to an appeal.

Dismissed.





Dissenting Opinion

PEARSON, Judge

(dissenting).

A proceeding pursuant to Criminal Procedure Rule 1 is an independent action.1 Compare Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). Since the motions were based upon dissimilar grounds, the filing of the notice of appeal in the first cause did not terminate the trial court's jurisdiction to entertain a motion upon the new cause. I do not view this case as being a “subsequent appeal” from the “same judgment”.

. “ * * * when the Florida courts are faced with questions regarding the application and interpretation of Rule No. 1, we should look to federal precedents and authorities as a guide.” Dickens v. State, Fla.App.1964, 165 So.2d 811, 813.