STATE OF FLORIDA, APPELLANT,
v.
WILLIAM THEODORE RUDOLF, JR., APPELLEE
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The State appealed an order granting Rudolf's motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), but the appellate court dismissed the appeal for lack of jurisdiction because the order was nonfinal and nonappealable.
The order is a nonfinal, nonappealable order because it is a motion filed in continuation of the original criminal proceeding that requires replacement of the original sentence with a new sentence not yet imposed. The State may seek review of the final new sentence once the trial court imposes it.
[1] An order granting a motion to correct an illegal sentence, which requires resentencing but does not impose a new sentence, is a nonfinal, nonappealable order.
[2] A motion to correct an illegal sentence is a continuation of the original criminal proceeding, not a new, separate proceeding.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We conclude that Mr. Rudolfs rule 3.800(a) motion did not create a new, separate proceeding. Instead, it is a motion filed in a continuation of the original criminal proceeding.”
Establishes that a 3.800(a) motion is part of the original proceeding, not a separate action
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Join FLexlaw to unlock all legal intelligenceRudolf was convicted of grand theft motor vehicle, possession of drug paraphernalia, resisting an officer without violence, and grand theft on January…
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[*386] ALTENBERND, Judge.
The State appeals an order granting William Theodore Rudolf, Jr.’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The order found that Mr. Rudolf was entitled to be resentenced but did not impose a new sentence. We conclude this is a nonfinal, nonappealable order and dismiss this appeal for lack of jurisdiction.
Mr. Rudolf was convicted of grand theft motor vehicle, possession of drug paraphernalia, resisting an officer without violence, and grand theft. The crimes occurred on January 4, 1999. On the two third-degree felony convictions, Mr. Rudolf was sentenced to the maximum sentence allowed by his Criminal Punishment Code sentencing scoresheet — two consecutive sentences of five years, for a total of ten years’ incarceration. See §§ 921.002(g), .0024(2), 775.082(3)(d), Fla. Stat. (1999). Thereafter, Mr. Rudolf filed a motion to correct an illegal sentence pursuant to rule 3.800(a), arguing that his sentence was illegal pursuant to section 921.001(5), Florida Statutes (Supp.1998).
The trial court granted Mr. Rudolfs motion, even though the cited statute apparently had been repealed prior to the date of Mr. Rudolfs offense. See ch. 97-194, § 1, Laws of Fla.
We conclude that Mr. Rudolfs rule 3.800(a) motion did not create a new, separate proceeding. Instead, it is a motion filed in a continuation of the original criminal proceeding.
We agree with the Fourth District that this type of order is a nonfi-nal, nonappealable order. See State v. Delvalle, 745 So. 2d 541 (Fla. 4th DCA 1999). The order requires that Mr. Ru-dolfs original sentence be replaced with a new sentence, but the new sentence has not yet been imposed. The order is essentially a nonfinal order entered after the entry of an appealable final order.
We conclude that Florida Rule of Appellate Procedure 9.130(a)(4), permitting appeals of nonfinal orders entered after final orders, does not apply in this criminal context. See Fla. R.App. P. 9.130(a)(2). We can find no counterpart to rule 9.130(a)(4) in Florida Rule of Appellate Procedure 9.140. To the extent that section 924.066(2), Florida Statutes (1999), seeks to confer jurisdiction for district courts to review adverse rulings granting or denying collateral or postconviction relief, that statute can apply constitutionally only to final orders. See State v. Gaines, 770 So. 2d 1221 (Fla.2000) (holding Florida Constitution does not authorize legislature to provide for interlocutory review).
Because the order the State seeks to appeal is a nonfinal, nonappealable order, the only potential avenue for relief at this time would be by way of common law certiorari.
However, the application of common law certiorari is restricted to cases in which the State cannot obtain adequate review following the entry of the new sentence.
We conclude that any new sentence will be a final appealable order granting collateral relief pursuant to section 924.066(1). The State will have the opportunity to seek review of the sentence when the trial court enters that final order. See Fla. R.App. P. 9.140(e)(l)(N) (permitting State to appeal orders “as otherwise provided by law for final orders”); see also Fla. R.App. P. 9.140(c)(1)(E) (permitting State to appeal “unlawful” sentences).
Accordingly, review by certiorari is not required in this case.
Appeal dismissed.
BLUE, C.J., and STRINGER, J„ concur.
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Cited By (11 total)
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Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012)…69 (Fla. 1st DCA 2010) (explaining that a resentencing after a successful rule 3.800(a) motion is a de novo proceeding); but cf. State v. Huerta, 38 So. 3d 883 (Fla. 3d DCA 2010); Adams v. State, 949 So. 2d 1125 (Fla. 3d DCA 2007); State v. Rudolf, 821 So. 2d 385 (Fla. 2d DCA 2002); State v. Delvalle, 745 So. 2d 541 (Fla. 4th DCA 1999). Accordingly, the order was subject to challenge only by way of a timely motion for rehearing or an appeal. Cf. Lormeus v. State, 10 So. 3d 190 (Fla. 4th DCA 2009) (noting tha…
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Adams v. State, 949 So. 2d 1125 (Fla. 3d DCA 2007)…ntencing, is still required.” State v. Delvalle, 745 So. 2d 541, 542 (Fla. 4th DCA 1999). Indeed, an order finding that Defendant was entitled to be resentenced, but not imposing a new sentence, is not an appealable final order. See State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002). As the Second District noted in Rudolf, after a new sentence is imposed the “State [would] have the opportunity to seek re [*1127] view of the sentence when the trial court enters that final order.” Id. at 386. In this case,…
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Lamont Taylor v. State, 96 So. 3d 989 (Fla. 5th DCA 2012)…A 2010) (rejecting defendant’s argument that state appeal from resentencing order was untimely; state not required to appeal from earlier order granting rule 3.800 motion because judicial labor was not complete until resen-tencing); State v. Rudolf, 821 So. 2d 385 (Fla. 2d DCA 2002) (dismissing state appeal from order granting rule 3.800 motion because said motion “did not create a new, separate proceeding. Instead, it is a motion filed in a continuation of the original criminal proceeding,” thus order granti…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Gaines, 770 So. 2d 1221 (Fla. 2000)
- Perez v. State, 745 So. 2d 541 (Fla. 3d DCA 1999)
- State v. Delvalle, 745 So. 2d 541 (Fla. 4th DCA 1999)