DAVID P. DURDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Durden appealed the summary denial of his motion to correct sentencing errors under Florida Rule of Criminal Procedure 3.800(b)(1). The trial court erroneously deemed the motion untimely and treated it as a rule 3.800(a) motion. The appellate court reversed and remanded, holding that the motion was timely filed within the thirty-day window allowed by rule 3.800(b)(1).
The motion was timely. Rule 3.800(b)(1) allows defendants thirty days to file such a motion, and Durden's motion was filed within that period. The trial court erred in concluding the motion was untimely and in treating it as a rule 3.800(a) motion.
[1] A motion to correct sentencing errors filed under Florida Rule of Criminal Procedure 3.800(b)(1) is timely if filed within thirty days of the resentencing.
[2] Florida Rule of Appellate Procedure 9.020(h) delays the rendition of a final order until the trial court disposes of a motion filed under Florida Rule of Criminal Procedu…
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Join FLexlaw to unlock all legal intelligence“Rule 3.800(b)(1) allows defendants in criminal cases to file a motion to correct sentencing errors in the trial court during the time allowed for the filing of a notice of appeal of the sentence.”
Establishes the basic framework allowing defendants thirty days to challenge sentencing errors before appeal.
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Join FLexlaw to unlock all legal intelligenceThe trial court resentenced Durden on September 12, 2005 in two criminal cases. On October 11, 2005, twenty-nine days later, Durden filed a motion to …
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[*1046] WALLACE, Judge.
David P. Durden appeals the summary denial of his motion to correct sentencing errors filed in accordance with Florida Rule of Criminal Procedure 3.800(b)(1). The trial court concluded that Mr. Dur-den’s motion was untimely, treated the motion as if it had been filed under rule 3.800(a), and denied the motion on the merits. We reverse the trial court’s summary denial of Mr. Durden’s motion to correct sentencing errors, and we remand for further proceedings consistent with this opinion.
Rule 3.800(b)(1) allows defendants in criminal cases to file a motion to correct sentencing errors in the trial court during the time allowed for the filing of a notice of appeal of the sentence. In conjunction with rule 3.800(b)(1), Florida Rule of Appellate Procedure 9.020(h) delays the rendition of the final order until the trial court disposes of the rule 3.800(b)(1) motion.1 Therefore, a defendant has thirty days to file a notice of appeal after the trial court rules on any sentencing error preserved by a 3.800(b)(1) motion.
On September 12, 2005, the trial court resentenced Mr. Durden in case numbers CRC93-07740CFANO-A and CRC94-00832CFANO-A. On October 11, 2005, twenty-nine days later, Mr. Durden timely filed his rule 3.800(b)(1) in both cases. Therefore, the trial court erred in concluding that Mr. Durden’s motion was untimely and incorrectly treated it as a rule 3.800(a) motion.
For these reasons, we reverse the trial court’s summary denial of Mr. Durden’s motion to correct sentencing errors. On remand, the trial court shall treat the motion as having been filed under rule 3.800(b)(1) and rule on the motion accordingly. If the trial court does not rule on the motion within sixty days of the issuance of this court’s mandate, then the motion shall be considered to be denied. We note that Mr. Durden will have thirty days from the disposition of his motion within which to appeal his resentencing.
Reversed and remanded for proceedings consistent with this opinion.
ALTENBERND and CASANUEVA, JJ., Concur. . If the trial court does not file an order ruling on the motion within sixty days, the motion is deemed to be denied. Fla. R.Crim. P. 3.800(b)(1)(B).