CHRISTOPHER M. MOYA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An order denying a motion to mitigate sentence is not directly appealable but may be reviewed by certiorari if the trial court departs from the essential requirements of law.
Defendant timely filed a motion to mitigate sentence. The trial court dismissed the motion for lack of jurisdiction without considering its merits, de…
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[*280] ALTENBERND, Judge.
Christopher M. Moya appeals an order denying his motion to mitigate sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(b). Such an order is not appealable, but may be reviewed in an extraordinary case under this court’s certiorari jurisdiction. Arnold, v. State, 621 So. 2d 503 (Fla. 5th DCA 1993); Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985), approved sub nom., Abreu v. State, 660 So. 2d 703 (Fla.1995).
Mr. Moya was sentenced to prison on October 10, 1995, following revocation of probation. He mailed his pro se motion to mitigate to the court in early November. It was filed on November 8, 1995, well within the sixty-day period during which a trial court can mitigate a legal sentence.
The trial court took no action on the motion until December 20,1995. On that day, it entered an order dismissing the motion for lack of jurisdiction. Thus, the trial court did not consider the merits of Mr. Moya’s timely motion merely because the court itself did not timely review the motion.
Recently, the supreme court held in Abreu that within a reasonable period, a trial court has jurisdiction to grant a party’s motion for enlargement of time under rule 3.050 in order to review a timely-filed rule 3.800(b) motion to mitigate. 660 So. 2d at 705. Rule 3.050 also permits a trial court, on its own motion, to enlarge time for such filing. Thus, the trial court departed from the essential requirements of the law when it dismissed the motion to mitigate for lack of jurisdiction. The trial court had jurisdiction to determine whether it should enlarge time under these circumstances to review the timely-filed motion.
Accordingly, we quash the trial court’s order, and remand for further proceedings consistent with this opinion. We express no opinion on the merits of Mr. Moya’s motion.
Petition for writ of certiorari granted, order quashed, and cause remanded with directions.
FRANK, A.C.J., and LAZZARA, J., concur.
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Citator
Cited By (24 total)
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Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999)…999. Thus, the trial court had jurisdiction to consider the motion on the merits. Sullivan v. State, 677 So. 2d 68 (Fla. 1st DCA 1996). The trial court’s failure to do so constitutes a departure from the essential requirements of law. Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996). REVERSED and REMANDED for consideration of Appellant’s motion on the merits. ALLEN, BENTON and BROWNING, JJ„ CONCUR.…
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Brantley v. The Honorable Cynthia A. Holloway, 685 So. 2d 31 (Fla. 2d DCA 1996)…denying this motion was technically incorrect. Nevertheless, Mr. Brantley filed his motion knowing that the trial court would have virtually no time to consider it and did not request an enlargement of time pursuant to rule 3.050. In Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996), we required a trial court to decide whether it should have raised and granted its own motion for enlargement of time when the court itself was the cause of a lengthy delay in processing such a motion. In the absence of such a hol…
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Schlabach v. State, 37 So. 3d 230 (Fla. 2010)…c) motion, the Second District held that the “trial court should have either' considered the motion on its merits or extended the time for considering the motion.” The Second District’s precedent on this issue is long-established. See Moya v. State, 668 So. 2d 279, 280 (Fla. 2d DCA 1996) (holding that pursuant to this Court’s decision in Abreu and rule 3.050, the trial court can and should sua sponte enlarge the time for ruling on such a motion when the court is unable to rule upon a timely filed motion to mi…1 / 2
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bruno Abreu v. State, 660 So. 2d 703 (Fla. 1995)
- Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985)
- Arnold v. State, 621 So. 2d 503 (Fla. 5th DCA 1993)