DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TYRONE ANTHONY JOHNSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3563

[January 7, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Jeffrey Colbath, Judge; L.T. Case No. 2012CF012814AMB.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard 

Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Tyrone Anthony Johnson appeals his convictions for possession of 

marijuana with intent to sell within 1000 feet of a park, possession of

MDMA with intent to sell within 1000 feet of a park, and possession of 

drug paraphernalia. We affirm without discussion the first issue raised by 

appellant. As to appellant’s second issue on appeal regarding the trial 

court’s denial of his second motion for new trial, we conclude that 

(1) appellant abandoned the motion when he filed a notice of appeal, thus 

divesting the trial court of jurisdiction to rule on the motion, and 

(2) appellant failed to appeal from the trial court’s order denying his second 

motion for new trial.

On July 5, 2013, after the jury found appellant guilty of the drug 

offenses, defense counsel filed a timely Motion to Interview Jurors and 

Motion for New Trial. The trial court denied the motion because the alleged 

misconduct inhered in the verdict. On September 13, 2013, defense 

counsel filed a second motion for new trial, based on newly discovered 

evidence. On September 20, 2013, defense counsel filed a notice of appeal. 
2

On October 16, 2013, the trial court entered its order denying the second 

motion for new trial.

Both parties agree that when appellant filed a notice of appeal, while 

his second Motion for New Trial was pending before the trial court, he 

abandoned the motion and divested the trial court of jurisdiction to rule 

on it. “[A] party abandons previously filed post-final judgment motions 

when he files a notice of appeal to review that very judgment.” In re 

Forfeiture of $104,591 in U.S. Currency, 589 So. 2d 283, 285 (Fla. 1991); 

see also Beyel Bros., Inc. v. Lemenze, 720 So. 2d 556, 558 (Fla. 4th DCA 

1998) (“[T]he filing of the notice of appeal divested the trial court of 

jurisdiction to hear a motion that pertained to the underlying final 

judgment.”). If the trial court issues an order without jurisdiction, the 

order is a nullity. Baker v. State, 128 So. 3d 41, 41-42 (Fla. 3d DCA 2012).1

Furthermore, we lack jurisdiction to review the trial court’s denial of 

appellant’s second Motion for New Trial, because appellant did not file an 

amended notice of appeal of that order. See Velickovich v. Ricci, 391 So.

2d 258, 260 (Fla. 4th DCA 1980) (“This court cannot review judicial acts 

of a trial court taking place after the filing of a notice of appeal unless those 

judicial acts are themselves made the subject of a new notice of appeal or 

other appropriate appellate proceedings.”).

Affirmed.

DAMOORGIAN, C.J., TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 We note that this case is not controlled by the newly adopted amendments to 

the appellate rule, which render this opinion obsolete. The rule now provides that 

a premature appeal does not abandon a pending motion for new trial. See In re 

Amendments to the Florida Rules of Appellate Procedure, 39 Fla. L. Weekly S665, 

39 Fla. L. Weekly S775, 2014 WL 5714099 (Fla. Nov. 6, 2014)(“Rule 9.020(i) is 

amended to eliminate the language providing that postjudgment motions are 

abandoned upon the filing of a notice of appeal. The amended rule will allow an 

appeal to be held in abeyance until disposition of a postjudgment motion.”).