Cazeau v. State , 858 So. 2d 1213 ( 2003 )

858 So.2d 1213 (2003)

Jude P. CAZEAU, Appellant,
v.
STATE of Florida, Appellee.

No. 4D03-3449.

District Court of Appeal of Florida, Fourth District.

November 12, 2003.

Jude P. Cazeau, Moore Haven, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Jude Cazeau appeals an order entered June 24, 2003, in the Broward County circuit court, summarily denying his motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The state agrees that the trial court lacked jurisdiction to rule because Cazeau's direct appeal from the challenged conviction, filed through counsel on April 4, 2003 (apparently without Cazeau's knowledge at the time he filed his pro se motion for post-conviction relief), is still pending in this court. Accordingly, we vacate the order on appeal and direct the trial court on remand either to stay the motion or to dismiss it without prejudice to Cazeau's refiling it, if necessary, after jurisdiction returns to the trial court when this court issues its mandate in the pending direct appeal, case no. 4D03-1667. See Daniels v. State, 712 So.2d 765 (Fla. 1998); Washington v. State, 823 So.2d 248, 249 (Fla. 4th DCA 2002); Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998).

GUNTHER, STONE and SHAHOOD, JJ., concur.