JUAN E. VELAZQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court denied Velazquez's appeal of an order denying his motion to mitigate sentence because the motion was filed outside the time period required by Florida Rule of Criminal Procedure 3.800(c), but without prejudice to any future 3.850 motion based on newly discovered evidence.
A motion to mitigate sentence filed outside the time periods specified in Florida Rule of Criminal Procedure 3.800(c) must be denied, though denial is without prejudice to a timely motion under rule 3.850.
[1] An order denying a motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c) is not reviewable by appeal but may be reviewed by petition for writ of c…
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Join FLexlaw to unlock all legal intelligenceVelazquez's judgment and sentence became final on September 30, 2002. He filed a motion to mitigate asserting newly discovered evidence but did not fi…
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SILBERMAN, Judge.
Juan E. Velazquez appeals an order denying his motion for mitigation of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Such an order is not reviewable by appeal but may be reviewed under this court’s certiorari jurisdiction. See Seward v. State, 912 So. 2d 389, 390 (Fla. 2d DCA 2005); Moya v. State, 668 So. 2d 279, 280 (Fla. 2d DCA 1996). We therefore convert this appeal to a petition for writ of certiorari.
Velazquez’s judgment and sentence became final on September 30, 2002. Although his motion to mitigate asserted that it was based on newly discovered evidence, he did not file the motion within the time periods provided for in rule 3.800(c). Therefore, we deny the petition for writ of certiorari. However, our denial is without prejudice to whatever right Velazquez may have to file a timely, legally sufficient motion to vacate, set aside, or correct his sentence under Florida Rule of Criminal Procedure 3.850 based on newly discovered evidence. We note that if Velazquez is successful in obtaining relief, he may be subject to a longer term of imprisonment than the sentence he is presently serving. See Green v. State, 857 So. 2d 304, 306 (Fla. 2d DCA 2003).
Petition denied.
WHATLEY and NORTHCUTT, JJ., Concur.
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Citator
Cited By
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Kwapil v. State, 44 So. 3d 229 (Fla. 2d DCA 2010)…time the motion was received by the court, and no motion for extension had been made. A circuit court order dismissing a rule 3.800(c) motion as untimely may be reviewed by petition for writ of certiorari in the district court. Velazquez v. State, 917 So. 2d 306, 306 (Fla. 2d DCA 2005). A circuit court departs from the essential requirements of the law when it dismisses a timely rule 3.800(c) motion without considering the merits of the motion. See, e.g., Lancaster v. State, 821 So. 2d 416, 417 (Fla. 2d DCA…
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Giannetta Bailey v. State, 136 So. 3d 615 (Fla. 2d DCA 2013)…urt dismissed the motion, concluding that it was filed after the sixty-day time limit imposed under rule 3.800(c). An order dismissing a rule 3.800 motion as untimely is reviewable under this court’s certiorari jurisdiction. See Velazquez v. State, 917 So. 2d 306, 306 (Fla. 2d DCA 2005). “A circuit court departs from the essential requirements of the law when it dismisses a timely rule 3.800(c) motion without considering the merits of the motion.” Kwapil v. State, 44 So. 3d 229, 230 (Fla. 2d DCA 2010). The…
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Johnson v. State, 932 So. 2d 562 (Fla. 3d DCA 2006)…denying his motion for mitigation of sentence filed pursuant to rule 3.800(c), Florida Rules of Criminal Procedure. “Such an order is not reviewable by appeal but may be reviewed under this [C]ourt’s certiorari jurisdiction.” See Velazquez v. State, 917 So. 2d 306 (Fla. 2d DCA 2005). We therefore treat this appeal as a petition for writ of certiorari and deny it. Petition for writ of certiorari denied.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moya v. State, 668 So. 2d 279 (Fla. 2d DCA 1996)
- Derejtova, Inc. v. RAY Corp., Inc., 857 So. 2d 304 (Fla. 3d DCA 2003)
- Seward v. State, 912 So. 2d 389 (Fla. 2d DCA 2005)