PATRICK SEWARD, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Patrick Seward sought certiorari review of a circuit court order denying his motion to mitigate his sentence as untimely. The court held that the motion was timely filed within sixty days after the appellate mandate issued concluding his direct appeal, and quashed the order denying the motion, remanding for consideration on the merits.
The motion was timely. Rule 3.800(c) provides a second opportunity for sentence mitigation within sixty days after receipt of the appellate mandate that concludes direct appeal, and the circuit court misapprehended the time requirements by failing to account for this second mitigation window.
[1] Orders denying relief under Florida Rule of Criminal Procedure 3.800(c) are reviewable by certiorari.
[2] A motion to modify a sentence under Florida Rule of Criminal Procedure 3.800(c) must be filed within sixty days after the imposition of the sentence or within sixty days…
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.800(c) allows a court to modify a sentence "within 60 days after the imposition, or within 60 days after receipt ... of a mandate issued by the appellate court."”
Establishes the plain language of the rule providing two separate sixty-day periods for sentence mitigation
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Join FLexlaw to unlock all legal intelligenceSeward was sentenced on June 11, 2003, after being found in violation of probation. His probation revocation and sentence were affirmed on direct appe…
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WALLACE, Judge.
Patrick Seward seeks certiorari review of the circuit court’s order denying as untimely a motion to mitigate his sentence. The State forthrightly concedes that this case warrants certiorari relief. We agree.
The relevant dates are undisputed. Seward was sentenced on June 11, 2003, after being found in violation of his probation. The probation revocation and resulting sentence were affirmed on direct appeal, Seward v. State, 908 So. 2d 1072 (Fla. 2d DCA 2004) (table decision), and the mandate issued on October 19, 2004. On November 22, 2004, Seward filed a motion to mitigate his sentence, contending that he should have received a more lenient sentence on several grounds.
Although Seward cited Florida Rule of Criminal Procedure 3.800(b) in his motion, the circuit court correctly treated the motion as being filed pursuant to rule 3.800(c).1 The circuit court denied Seward’s motion as untimely because it was filed more than sixty days after Seward was sentenced.
Orders denying relief under rule 3.800(c) are not reviewable by appeal, but we may review them under our certiorari jurisdiction. Moya v. State, 668 So. 2d 279, 280 (Fla. 2d DCA 1996). Florida Rule of Criminal Procedure 3.800(c) allows a court to modify a sentence “within 60 days after the imposition, or within 60 days after receipt ... of a mandate issued by the appellate court.” In this case, the circuit court misapprehended the time requirements of rule 3.800(c) and failed to account for the “second opportunity for mitigation during the sixty days after issuance of the mandate that concluded [the] direct appeal.” Smith v. State, 895 So. 2d 488, 489 (Fla. 2d DCA 2005). Because Seward’s motion was filed within sixty days after issuance of the mandate that concluded his direct appeal, the motion was timely.
Accordingly, we quash the order that dismissed Seward’s motion as untimely and remand for the circuit court to consider the motion on the merits. See Brown v. State, 707 So. 2d 1191 (Fla. 2d DCA 1998); Roauer v. State, 697 So. 2d 1303 (Fla. 2d DCA 1997); Moya, 668 So. 2d 279.
Petition granted.
FULMER, C.J., and DAVIS, J., Concur. . While Seward's motion was pending, Seward filed an amended motion that cited rule 3.800(c) but that was otherwise identical in substance to the original motion. Seward was not harmed by — and we do not disturb — • the circuit court’s failure to consider the amended motion because the court treated the original motion as being filed pursuant to rule 3.800(c). See Fla. R.Crim. P. 3.020 (requiring that the rules be construed for simplicity in procedure and fairness).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Diaz v. State, 931 So. 2d 1002 (Fla. 3d DCA 2006)…), Florida Rules of Criminal Procedure, permits a defendant to file a motion for reduction of sentence within 60 days of the issuance of the mandate in the original appeal. See Smith v. State, 895 So. 2d 488, 489 (Fla. 2d DCA 2005); Seward v. State, 912 So. 2d 389, 390 (Fla. 2d DCA 2005). The appellant’s motion for reduction of sentence was therefore timely and should have been considered by the trial court, as the state has properly conceded. See Arnold, 621 So. 2d at 503 (“although it is within the unfetter…
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Cunniff v. State, 950 So. 2d 1255 (Fla. 2d DCA 2007)…n order dismissing as untimely his motion for mitigation of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We have jurisdiction to review the order. See Byrd v. State, 920 So. 2d 825, 826 (Fla. 2d DCA 2006); Seward v. State, 912 So. 2d 389, 390 (Fla. 2d DCA 2005). Because the trial court departed from the essential requirements of law in dismissing the motion, we grant the petition, quash the trial court’s order, and remand for the trial court to consider the motion on its merits. In…
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Byrd v. State, 920 So. 2d 825 (Fla. 2d DCA 2006)…his court’s certiorari jurisdiction. Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996). Such review extends to orders of dismissal entered upon an erroneous determination that the motion was untimely filed as in the present case. See Seward v. State, 912 So. 2d 389 (Fla. 2d DCA 2005). Accordingly, we quash the order that dismissed Byrd’s motion as untimely and remand to the circuit court for its consideration of the motion on the merits. Petition granted. NORTHCUTT and SILBERMAN, JJ., Concur. . We note tha…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996)
- Thompson v. State, 707 So. 2d 1191 (Fla. 4th DCA 1998)
- Roauer v. State, 697 So. 2d 1303 (Fla. 2d DCA 1997)
- Smith v. State, 895 So. 2d 488 (Fla. 2d DCA 2005)