Hull v. State, 629 So. 2d 1113 (Fla. 1st DCA 1994). · Go Syfert
Hull v. State, 629 So. 2d 1113 (Fla. 1st DCA 1994). Cases Citing This Book View Copy Cite
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Tracy Lee HULL
v.
STATE of Florida
No. 93-2349.
District Court of Appeal of Florida, First District.
Jan 20, 1994.
629 So. 2d 1113
Tracy Lee Hull, pro se., Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Allen, Ervin, Smith.
Published
ALLEN, Judge.

The appellant challenges the lower court’s dismissal of a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The court dismissed this motion because the appellant had a pending appeal challenging the court’s denial of a Florida Rule of Criminal Procedure 3.230 motion to disqualify the judge assigned to the case. Although a pending appeal as to the underlying conviction and sentence would preclude the lower court’s jurisdiction to consider a rule 3.850 motion, see Bryan v. State, 470 So.2d 864 (Fla. 2d DCA1985), the appeal of a motion to disqualify does not have such absolute pre-clusive effect. See Fla.R.App.P. 9.130(f). The lower court thus should have retained jurisdiction, and should not have dismissed the appellant’s rule 3.850 motion for post-conviction relief.

The appealed order is reversed, and the cause remanded.

ERVIN and SMITH, JJ., concur.