CLINTON CLIATT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clinton Cliatt appealed a sentencing issue under Florida Rule of Criminal Procedure 3.800(b), which allows post-conviction motions to correct sentencing errors. The trial court failed to rule on the motion within the sixty-day deadline required by the rule, and any order entered after that deadline is void; the motion is deemed denied and the sentencing error may be raised on appeal.
Any order entered by the trial court after the sixty-day period expires is a nullity and the motion is deemed denied. The reason for missing the deadline is irrelevant, no extensions are permitted, and any sentencing error may then be raised in the initial appellate brief.
[1] Under Florida Rule of Criminal Procedure 3.800(b), a motion is deemed denied if the trial court fails to rule on it within sixty days of its filing.
[2] The reason for a trial court's failure to rule on a Rule 3.800(b) motion within the sixty-day period is irrelevant, and no extensions are permitted.
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Establishes the automatic deeming denied provision when trial court misses the sixty-day deadline
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Join FLexlaw to unlock all legal intelligenceAppellant Cliatt filed a motion under Rule 3.800(b) to challenge his sentence. The trial court attempted to rule on the motion within the deadline but…
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PER CURIAM.
This is another in the blossoming number of cases under the new Florida Rule of Criminal Procedure 3.800(b).
This is a case where the trial court failed to file an order ruling on the motion within sixty days of the filing of the motion. Under the new rule, if this occurs, the motion is “deemed” denied. In a case “pending appeal” 1 such as this one, if this deadline is not met, the clerk apparently is to supplement the record with the motion and the appeal is to proceed. Here, the trial court attempted to rule on the motion within the deadline imposed by the rule, but was thwarted by the failure of others to transport appellant. Under the rule, the reason for the failure to rule does not matter and no extension is permitted. See Kimbrough v. State, 766 So. 2d 1255 (Fla. 5th DCA 2000).
Any order entered by the trial court after the sixty-day period expired is a nullity and the motion is deemed denied. Any sentencing error thus preserved by the filing of the motion may then be raised in the initial brief. In the present case, because the lower court acted out of time to correct the sentence, its disposition is a nullity. Appellant shall serve his initial brief within twenty days of the date of this opinion and may raise any sentencing error preserved by proper objection at the sentencing hearing or by being raised in his Rule 3.800(b) motion.
HARRIS, PETERSON and GRIFFIN, JJ., concur. . We note that the rule’s deadline for the filing of a 3.800(b) motion is not a specified number of days but is the filing of the appellant's initial brief. There is no provision, however, for what occurs if the brief is not timely filed. If the motion is filed after the brief due date but before the appellate court dismisses the appeal, according to the rule, the stay takes effect. Fla. R.Crim. P. 3.800(b)(2).
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Wilson v. State, 792 So. 2d 601 (Fla. 4th DCA 2001)…ion to resentence Wilson, and it is undisputed that he was originally sentenced pursuant to the unconstitutional amendments to the 1994 sentencing guidelines, we remand this case for another resen-tencing pursuant to Heggs. See id.; Cliatt v. State, 773 So. 2d 610, 611 (Fla. 5th DCA 2000); Kimbrough, 766 So. 2d at 1257. We disagree, however, with Wilson’s contention that his original sentence was vindictive and, therefore, he should, on remand, be resentenced by a different trial judge. A defendant may not b…
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Brooks v. State, 867 So. 2d 1276 (Fla. 4th DCA 2004)…rule within sixty days as required under the rule. Thus, the motion was deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B). Although the court later granted the motion and reduced his sentence, that order is considered a nullity. See Cliatt v. State, 773 So. 2d 610, 611 (Fla. 5th DCA 2000). Nevertheless, in case number 01-14442, the state concedes that appellant’s sentence should have been reduced to nine months, as the trial court did in its untimely order. Reversed and remanded for resentenc-ing in accorda…
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Wilson v. State, 846 So. 2d 1201 (Fla. 4th DCA 2003)…tion to resentence Wilson, and it is undisputed that he was originally sentenced pursuant to the unconstitutional amendments to the 1994 sentencing guidelines, we remand this case for another resentencing pursuant to Heggs. See id.; Cliatt v. State, 773 So. 2d 610, 611 (Fla. 5th DCA 2000); Kimbrough, 766 So. 2d at 1257. Further, pursuant to the mandate we now hold that the record creates an unre-butted presumption that the sentence was vindictive and therefore remand and direct that Wilson be resentenced in…
Authorities Cited
- Kimbrough v. State, 766 So. 2d 1255 (Fla. 5th DCA 2000)