Kudelka v. State

No. 87-25 | Fla. Dist. Ct. App. | Dec 21, 1988

ON MOTION FOR STAY

FRANK, Judge.

The appellant, acting pro se, has filed a motion for stay of his resentencing hearing relying on Everage v. State, 516 So. 2d 81" date_filed="1987-12-04" court="Fla. Dist. Ct. App." case_name="Everage v. State">516 So.2d 81 (Fla. 1st DCA 1987), Hall v. State, 530 So. 2d 1066" date_filed="1988-09-08" court="Fla. Dist. Ct. App." case_name="Hall v. State">530 So.2d 1066 (Fla. 1st DCA 1988), and McKinnon v. State, 530 So. 2d 1101" date_filed="1988-09-20" court="Fla. Dist. Ct. App." case_name="McKinnon v. State">530 So.2d 1101 (Fla. 1st DCA 1988). The preceding authorities, all arising in the First District, hold that an automatic stay of resentencing occurs upon the filing of a petition for discretionary review in the Supreme Court. We, however, find the Fifth District’s reasoning in Vicknair v. State, 501 So. 2d 755" date_filed="1987-02-05" court="Fla. Dist. Ct. App." case_name="Vicknair v. State">501 So.2d 755 (Fla. 5th DCA 1987), review dismissed, 511 So.2d 299 (Fla.1987), persuasive. Vicknair rejects the view that an automatic stay follows upon the invocation of the Supreme Court’s discretionary review jurisdiction. We find no provision in the appellate rules resulting in the automatic stay claimed by the appellant. Like the court in Vicknair, we find that an automatic stay in the present setting would make the rules dealing with application for stay of mandate superfluous.

We treat the appellant’s motion for stay as one within our discretionary power; it is denied.

DANAHY, A.C.J., and LEHAN, J., concur.