EDDIE C. EDMOND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WARNER, J.
After appellant filed an appeal from his resentencing pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000), he filed a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). The trial court failed to rule on the motion within sixty days. Pursuant to rule 3.800(b), if the trial court fails to do so, the motion is deemed denied. No motion for extension of the sixty day time period was requested. Appellant now requests that this court relinquish jurisdiction so the trial court can rule on the motion to correct the sentence.
In Mcguire v. State, 779 So. 2d 571, 572-74 (Fla. 2d DCA 2001), while the second district determined that the appellate court and trial court have concurrent jurisdiction to grant an extension of the sixty day time requirement prior to the expiration of the period, the court agreed with the fifth district’s holding in Kimbrough v. State, 766 So. 2d 1255, 1257 (Fla. 5th DCA 2000), that “a trial court cannot extend the time to resolve a 3.800(b) motion after the motion has already been automatically de nied by the expiration of the sixty-day period.” Because by rule the motion is deemed already denied, even if this court relinquished jurisdiction, the trial court could not now rule on the motion. We therefore deny the motion for relinquishment of jurisdiction.
This case will proceed as an appeal of the resentencing and denial of the motion to correct sentence pursuant to rule 3.800(b).
STONE and FARMER, JJ., concur.
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Waters v. State, 916 So. 2d 27 (Fla. 1st DCA 2005)…court entered on the appellant’s motion under Florida Rule of Criminal Procedure 3.800(b)(2), more than 60 days had passed after the filing of the motion and the court thus no longer had jurisdiction for the entry of this order. See Edmond v. State, 832 So. 2d 782 (Fla. 4th DCA 2002). The January 2005 order is therefore vacated. However, the December 3, 2003, revocation order clearly reveals the court’s finding that the appellant committed each of the violations alleged in the charging affidavit. There was su…
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Wilson v. State, 853 So. 2d 1119 (Fla. 4th DCA 2003)…for count I, however, the State has conceded that the trial court lacked jurisdiction to rule on the 3.800(b)(2) motion more than sixty days after such motion was filed absent the timely filing of a motion for extension of time. See Edmond v. State, 832 So. 2d 782 (Fla. 4th DCA 2002); Jackson v. State, 793 So. 2d 117 (Fla. 2d DCA 2001). We, therefore, reverse the sentence imposed for count I and remand for the entry of a new sentencing order. AFFIRMED in part, REVERSED in part and REMANDED. WARNER, POLEN…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Kimbrough v. State, 766 So. 2d 1255 (Fla. 5th DCA 2000)
- McGUIRE v. State, 779 So. 2d 571 (Fla. 2d DCA 2001)