ANTONIO MULLER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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PER CURIAM.
Petitioner seeks certiorari review of the trial court’s denial of his motion for mitigation of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Although an order denying a motion to mitigate sentence on the merits is not appealable, an appellate court may exercise its certiorari jurisdiction to review a case where, as in the instant case, the motion was denied for lack of jurisdiction based on the motion’s untimeliness. See Atkins v. State, 851 So. 2d 829 (Fla. 1st DCA 2003); Jolly v. State, 803 So. 2d 846 (Fla. 1st DCA 2001). In this case, petitioner’s motion was filed within 60 days of this court’s issuance of mandate on petitioner’s direct appeal. Therefore, the trial court had jurisdiction to consider petitioner’s motion, and its failure to do so is a departure from the essential requirements of the law. See Atkins; Jolly.
Accordingly, we grant the petition for writ of certiorari, vacate the order, and remand with directions to consider petitioner’s motion on its merits.
ERVIN, WEBSTER, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Casciola v. State, 37 So. 3d 347 (Fla. 2d DCA 2010)…d restitution owed to victims in this case. An order denying a motion to mitigate sentence is not an appealable order. See Moya v. State, 668 So. 2d 279, 280 (Fla. 2d DCA 1996); Mann v. State, 26 So. 3d 664, 664 (Fla. 3d DCA 2010); Muller v. State, 938 So. 2d 609, 609 (Fla. 1st DCA 2006). Although this court could exercise its certiorari jurisdiction, cf. Moya, 668 So. 2d at 280, we decline to do so because the facts of this case, which are briefly discussed below, do not justify such treatment. In 2007, Mr…
Authorities Cited
- Jolly v. State, 803 So. 2d 846 (Fla. 1st DCA 2001)
- Terence C. Atkins v. State, 851 So. 2d 829 (Fla. 1st DCA 2003)