HOWARD ALEXANDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Howard Alexander sought certiorari review of a trial court's order denying his motion to mitigate sentence, which was issued at a hearing he did not attend and without notice. The Florida District Court of Appeal granted the petition, finding that Alexander was entitled to a ruling on the merits of his motion and, if a hearing were held, to be present at it.
The trial court erred in denying the motion without considering it on its merits. While an evidentiary hearing is not required for a ruling on a motion to reduce or modify sentence, Alexander is entitled to a ruling on the merits of the motion and, if a hearing is held, to be present and participate in it.
[1] A trial court's order denying a motion to mitigate a sentence may be reviewed by writ of certiorari.
[2] A defendant is entitled to have a motion to mitigate a sentence considered on its merits.
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Join FLexlaw to unlock all legal intelligence“Alexander is entitled to a ruling on the merits of the motion and, if a hearing is to be held, to be present.”
Establishes the core holding that a defendant must receive a decision on the substantive motion and cannot be excluded from a hearing on the motion.
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Join FLexlaw to unlock all legal intelligenceAfter Alexander's conviction for manslaughter and grand theft was affirmed on appeal, he timely filed a motion to mitigate his sentence under Florida …
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DAVIS, Judge.
Howard Alexander seeks review of the trial court’s order denying his motion to mitigate his sentence. He petitions for a writ of certiorari arguing that the trial court erred in denying his motion after a hearing at which he was not present. We grant his petition and quash the order. After this court affirmed his judgment and sentence for manslaughter and grand theft, Alexander timely filed a motion to mitigate his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court, without notice to Alexander, held a hearing on that motion on January 24, 2001. Even though Alexander was in the State’s custody, neither he nor his attorney appeared at the hearing. On January 26, 2001, Alexander received a notice from the clerk of the circuit court advising him that his motion was “heard in court and was denied.” The clerk attached a copy of the court’s calendar which indicated that the motion was denied with the notation “no one present.”
Although orders issued pursuant to rule 3.800(c) are not appealable, we may exercise our certiorari jurisdiction to review such an order. Brawn v. State, 707 So. 2d 1191 (Fla. 2d DCA 1998).
Alexander maintains that he has been denied due process, suggesting that either the State had the opportunity to provide ex parte communication to the court or the court had failed to address the merits of his motion, merely denying the same because no one was there to argue the merits. The State denies that any ex parte communication took place here. However, it concedes that the trial court did not decide the motion on its merits but merely denied it because neither Alexander nor his attorney was present. The State asserts that the order should be quashed and the motion returned to the trial court for consideration on its merits. We agree.
A ruling on a motion to reduce or modify sentence is one subject to the trial court’s discretion, see State v. Richardson, 766 So. 2d 1111 (Fla. 3d DCA 2000), and does not require an evidentiary hearing. However, Alexander is entitled to a ruling on the merits of the motion and, if a hearing is to be held, to be present.
Accordingly, we grant the petition for a writ of certiorari, quash the order denying the motion to mitigate, and remand to the trial court for consideration of the motion on its merits. The trial court may determine the motion with or without a hearing; however, if the trial court chooses to hold a hearing, Alexander should be given the opportunity to attend and participate.
GRANTED.
NORTHCUTT and KELLY, JJ„ Concur.
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Citator
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Spaulding v. State, 93 So. 3d 473 (Fla. 2d DCA 2012)…Wesner v. State, 843 So. 2d 1039 (Fla. 2d DCA 2003). We have once granted certiorari relief on the State’s concession because the defendant’s motion was denied when he failed to attend a hearing that was not properly noticed. See Alexander v. State, 816 So. 2d 778 (Fla. 2d DCA 2002). The First District has granted relief on the State’s concession when the trial court erroneously treated the motion as if it were filed pursuant to rule 3.800(a). See Thoas v. State, 751 So. 2d 764 (Fla. 1st DCA 2000). In that si…
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Alexander v. Sec'y, Dep't OF Corr., Attorney Gen., State of Fla., 523 F.3d 1291 (11th Cir. 2008)…rtiorari in the Florida appellate court. On May 10, 2002, the Florida appellate court held that Alexander was entitled to a ruling on the merits of his 3.800(c) motion and, if a hearing was held, to be present for the hearing. Alexander v. State, 816 So. 2d 778, 780 (Fla.Dist.Ct.App.2002). Accordingly, the Florida appellate court granted the petition for certiorari, quashed the trial court’s order denying Alexander’s 3.800(c) motion, and remanded to the trial court for consideration of his 3.800(c) motion…
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Alexander v. Sec'y, Dep't OF Corr., Attorney Gen., State of Fla., 510 F.3d 1362 (11th Cir. 2007)…rtiorari in the Florida appellate court. On May 10, 2002, the Florida appellate court held that Alexander was entitled to a ruling on the merits of his 3.800(c) motion and, if a hearing was held, to be present for the hearing. Alexander v. State, 816 So. 2d 778, 780 (Fla.Dist.Ct.App.2002). Accordingly, the Florida appellate court granted the petition for certiorari, quashed the trial court’s order denying Alexander’s 3.800(c) motion, and remanded to the trial court for consideration of his 3.800(c) motion…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thompson v. State, 707 So. 2d 1191 (Fla. 4th DCA 1998)
- State v. Richardson, 766 So. 2d 1111 (Fla. 3d DCA 2000)