BERNARD DOUGHERTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bernard Dougherty appealed a trial court order partially denying his motion to correct sentence under Florida Rule of Criminal Procedure 3.800(a). The appellate court dismissed the appeal for lack of jurisdiction because the trial court's order lacked finality by denying some claims with prejudice while denying others without prejudice and leaving them open for amendment with no specified deadline.
The court lacks jurisdiction to review the order because it lacks finality. When a trial court grants leave to amend a motion, a defendant cannot appeal until the trial court enters an order denying the motion without leave to amend. The trial court improperly created a partial final judgment allowing appeal of some grounds while leaving others open for future amendment.
[1] A trial court order denying a motion to correct sentence with leave to amend is not a final, appealable order.
[2] A defendant may not appeal a motion to correct sentence until an order denying the motion is entered without leave to amend.
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Join FLexlaw to unlock all legal intelligence“If leave to amend has been given by the trial court, a defendant may not appeal until an order denying the motion is entered without leave to amend.”
Establishes the fundamental principle that an order leaving claims open for amendment is not final and therefore not appealable.
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Join FLexlaw to unlock all legal intelligenceDougherty filed a motion to correct sentence raising three claims. The trial court denied two claims with prejudice. For the third claim, the trial co…
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Bernard Dougherty appeals a trial court order partially denying his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Dougherty’s motion raised three claims. The trial court denied two of the claims with prejudice. With respect to the third claim, the trial court concluded it was legally insufficient and denied it without prejudice with leave to amend. No specific time was provided within which an amendment could be filed. The order then advised Mr. Dougherty that he had thirty days to file an appeal. Because the order lacks finality, we dismiss for lack of jurisdiction. Howard v. State, 976 So.2d 635, 636 (Fla. 5th DCA 2008). If leave to amend has been given by the trial court, a defendant may not appeal until an order denying the motion is entered without leave to amend. Id.
It appears that the trial court attempted to create a partial final judgment that allowed Mr. Dougherty to appeal some, but not all, of the grounds asserted, and also allowed an amended motion to be filed at some unspecified time in the future. The trial court should have stricken the legally insufficient claim with leave to amend within a specific, reasonable period of time, probably thirty days. Although the trial court was free to indicate in such a non-dispositive order that the other grounds would ultimately be denied without leave to amend, it should not have entered a partial final order. Lawrence v. State, 987 So.2d 157, 158 (Fla. 2d DCA 2008). Informing Mr. Dougherty that he had a right to appeal the non-final order within thirty days of its rendition apparently confused him. It would have been preferable for the trial court to affirmatively inform Mr. Dougherty that such a non-final order is not yet appealable. Id.
For these reasons, we must dismiss this appeal. However, the trial court shall provide Mr. Dougherty a reasonable time to amend his motion. If he does not amend his motion, the court may enter a final order that disposes of all of Mr. Dougherty’s claims on the merits. If he files an amendment, the court should consider that amendment and rule on it in an appropriate manner intended to result in a single' final order.
APPEAL DISMISSED.
MONACO and COHEN, JJ., concur.
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Citator
Cited By
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Cunningham v. State, 15 So. 3d 722 (Fla. 5th DCA 2009)…PER CURIAM. DISMISSED. See Dougherty v. State, 10 So. 3d 172 (Fla. 5th DCA 2009). SAWAYA, PALMER and LAWSON, JJ., concur.…
Authorities Cited
- Mason v. State, 987 So. 2d 157 (Fla. 5th DCA 2008)
- Howard v. State, 976 So. 2d 635 (Fla. 5th DCA 2008)