Montague v. State, 98-00136

• Citation: 710 So.2d 228
• Decision Date: 15 May 1998
• Docket Number: No. 98-00136,98-00136
• Parties: 23 Fla. L. Weekly D1213 Larry MONTAGUE, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 228

710 So.2d 228

23 Fla. L. Weekly D1213

Larry MONTAGUE, Appellant, v. STATE of Florida, Appellee.

No. 98-00136.

District Court of Appeal of Florida,

Second District.

May 15, 1998.

Appeal pursuant to Fla. R.App. P. 9.140(i) from the Circuit Court for Hillsborough County; Debra K. Behnke, Judge.

PER CURIAM.

Larry Montague appeals the trial court's dismissal, on jurisdictional grounds, of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), requesting additional jail credit and credit for prison time previously served in several cases. At the time Montague filed his motion, he had pending before this court an appeal from the denial of a postconviction motion alleging ineffective assistance of counsel. The trial court ruled that it lacked jurisdiction owing to the pendency of the appeal and did not reach the merits of Montague's claims.

The trial court did have jurisdiction to consider the motion. See Bates v. State, 704 So.2d 562 (Fla. 1st DCA 1997) (holding the appeal of a postconviction motion will not deprive the trial court of jurisdiction in a subsequent motion unless the issues are similar).

Accordingly, we reverse and remand for the trial court to make a determination on the merits of Montague's claim. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days.

Reversed and remanded with directions.

THREADGILL, A.C.J., and BLUE and GREEN, JJ., concur.