WILLIE A. WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Ward appeals the denial of his Rule 3.850 motion and other post-conviction motions. The court affirms most rulings but reverses the circuit court's dismissal of his Rule 3.800(c) motion to reduce or modify sentence as untimely, finding the motion was timely filed and the circuit court had jurisdiction to consider it on the merits.
The court held that Ward's motion was timely filed within 60 days of the December 17, 2001 resentencing order, that the circuit court had jurisdiction to consider the motion, and that the court's failure to do so constituted a departure from the essential requirements of law. The court treated the appeal as a petition for writ of certiorari and remanded for consideration on the merits.
[1] A motion to reduce or modify a sentence under Florida Rule of Criminal Procedure 3.800(c) must be filed within sixty days of the date of the judgment and sentence.
[2] The time limit for filing a motion to reduce or modify a sentence under Florida Rule of Criminal Procedure 3.800(c) is jurisdictional.
Previewing 2 of 4 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“A trial court's order denying, on the merits, a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence is not appealable.”
Establishes the general rule that such denials are not appealable on the merits.
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Join FLexlaw to unlock all legal intelligenceWard was resentenced on remand following direct appeal to 25 years as a habitual felony offender by order entered December 17, 2001. Ward served his M…
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PER CURIAM.
Willie A. Ward appeals an order of the circuit court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 as well as several other post-conviction motions. We affirm all of the circuit court’s rulings except the order denying as untimely the Motion to Reduce or Modify Sentence, filed pursuant to Rule 3.800(c).
In denying the 3.800(c) motion, the circuit court made the following findings:
Motions to reduce or modify a sentence are governed by Florida Rule Criminal Procedure 3.800(c), which requires that the motion be filed within sixty (60) days of the date of the judgment and sentence. The time limit provided by the rule is jurisdictional. Therefore, Defendant failed to timely file his motion to reduce or modify his sentence and this Court was without jurisdiction to do anything but deny that motion.
(R. 64). On remand following his direct appeal, Ward was resentenced to a term of 25 years as an habitual felony offender in an order entered December 17, 2001. The next day, December 18, 2001, Ward served his Motion to Reduce or Modify Sentence, and it was stamped as filed with the court on December 21, 2001. Thus, the circuit court erred in finding the motion untimely.
“A trial court’s order denying, on the merits, a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence is not appealable.” Dams v. State, 745 So. 2d 499, 499 (Fla. 1st DCA 1999). “However, an appellate court may exercise its certiorari jurisdiction to review a case where the motion was denied for, among other reasons, lack of jurisdiction based on the motion’s untimeliness.” Id. In this case, contrary to the court’s determination, it did have jurisdiction to consider the motion on the merits and its failure to do so constitutes.a departure from the essential requirements of law. See, e.g., Atkins v. State, 851 So. 2d 829 (Fla. 1st DCA 2003); Jolly v. State, 803 So. 2d 846 (Fla. 1st DCA 2001). Therefore, we treat the appeal of the denial of this order as a petition for writ of certiorari, quash the circuit court’s order denying the motion, and remand with instructions for the court to consider the motion on its merits. See, e.g., Jolly, 803 So. 2d at 846-47.
AFFIRMED in part; QUASHED and REMANDED in part.
KAHN, WEBSTER, and POLSTON, JJ., concur.
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Smith v. State, 902 So. 2d 293 (Fla. 3d DCA 2005)…PER CURIAM. The trial court’s order denying, on the merits, a Florida Rule of Criminal Procedure 3.800(e) motion to mitigate sentence is not an appealable order. Accordingly, we dismiss this appeal. Ward v. State, 854 So. 2d 260, 261 (Fla. 1st DCA 2003); Wilson v. State, 846 So. 2d 1220, 1220 (Fla. 5th DCA 2003); Graham v. State, 845 So. 2d 1016, 1016 (Fla. 3d DCA 2003); Lewis v. State, 778 So. 2d 537, 537 (Fla. 3d DCA 2001); Clewis v. State, 715 So. 2d 1129, 1129 (Fla. 3d…
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Griffin v. State, 979 So. 2d 1253 (Fla. 4th DCA 2008)…r mitigation and/or reduction of sentence. It explained as follows: There is case law that holds that a Defendant receives a second opportunity to file a rule 3.800(c) motion after resen-tencing pursuant to a direct appeal. See Word [sic] v. State, 854 So. 2d 260 (Fla. 1st DCA 2003), see also Vrobel v. State, 884 So. 2d 471 (Fla. 4th DCA 2004). However, there is no rule that suggests a Defendant receive additional opportunities after each resentencing pursuant to a collateral appeal on a sentence originally…1 / 2
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Scipio G. Ridley v. State, 890 So. 2d 1261 (Fla. 5th DCA 2005)…rroneously concluded that it lacked jurisdiction to consider the State’s timely restitution request, the State should have asked this court to exercise its certiorari jurisdiction to review the trial court’s jurisdictional ruling. See Ward v. State, 854 So. 2d 260 (Fla. 1st DCA 2003). Instead, the State filed an unauthorized motion for rehearing, asserting section 775.089, Florida Statutes (2002), the criminal restitution statute, as authority for a restitution award. While the State correctly argues that sec…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999)
- Jolly v. State, 803 So. 2d 846 (Fla. 1st DCA 2001)
- Terence C. Atkins v. State, 851 So. 2d 829 (Fla. 1st DCA 2003)