         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


JULIUS ERWIN BLACK,

              Appellant,

 v.                                                         Case No. 5D16-4327

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed April 28, 2017

3.850 Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.

Julius Erwin Black, Wewahitchka, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel Perrone,
Assistant Attorney General, Daytona
Beach, for Appellee.



PER CURIAM.

       Julius Erwin Black appeals the trial court's summary denial of his Florida Rule of

Criminal Procedure 3.850 motion for postconviction relief. Because the trial court lacked

jurisdiction to rule on the motion, we reverse.

       In March 2016, Black filed a rule 3.850 motion raising nine claims of ineffective

assistance of counsel, which the trial court summarily denied on all grounds. He appealed
the summary denial in case number 5D16-1952. Black then filed two successive motions

to amend his original 3.850 motion, which the trial court denied. He appealed these

denials in case number 5D16-3695.

       Our court first ruled on Black's appeal of the summary denial (5D16-1952),

affirming all claims except claim 7, in which Black argued trial counsel provided ineffective

assistance by not calling his co-defendant, Phillip Snead, as a defense witness. Black v.

State, 202 So. 3d 466, 467 (Fla. 5th DCA 2016). We reversed the denial of claim 7 and

remanded for the trial court to attach records conclusively refuting the claim or to hold an

evidentiary hearing. Id. On remand, the trial court entered a new order, once more

summarily denying claim 7. Black then filed the instant appeal, with his second appeal

(5D16-3695) still pending. 1

       We find that the trial court lacked jurisdiction to consider claim 7 of Black's rule

3.850 motion on remand while his appeal in case number 5D16-3695 remained pending.

Generally, "a trial court has authority to consider or to defer ruling and stay a subsequently

filed postconviction motion that raises unrelated issues notwithstanding the pendency of

an appeal of an order on a previously filed postconviction motion." Jackman v. State, 88

So. 3d 325, 327 (Fla. 4th DCA 2012). However, "if the subsequent motion raises the same

or related issues to those on appeal, the trial court may not consider the merits while the

related appeal is pending." Id. Here, the trial court lacked jurisdiction to consider claim 7

on remand because Black's pending appeal in case number 5D16-3695 also concerned

the merits of claim 7. Accordingly, we reverse the trial court's summary denial of claim 7




       1   Our court has since ruled on this appeal.


                                              2
and remand with instructions to consider that claim in conjunction with the second motion

to amend.

      REVERSED and REMANDED with Instructions.



SAWAYA, BERGER and WALLIS, JJ., concur.




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