RICHARD PILLAJO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Pillajo appeals the dismissal of his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. The appellate court dismisses the appeal for lack of jurisdiction because neither dismissal of a 3.850 motion with leave to refile nor denial of a 3.800(c) motion is appealable.
The appellate court lacks jurisdiction to review either the dismissal of a rule 3.850 motion with leave to amend (which renders the order nonfinal and nonappealable) or the denial of a rule 3.800(c) motion (which is not directly appealable).
[1] An order dismissing a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 with leave to refile is nonfinal and nonappealable.
[2] An order denying a motion for reduction or modification of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c) is not a directly appealable order.
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Join FLexlaw to unlock all legal intelligence“dismissing a pleading with leave to amend "renders the order nonfinal and nonappealable"”
Establishes that dismissal of a 3.850 motion with leave to refile is not appealable because it does not finally resolve the matter
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed Pillajo's rule 3.850 postconviction motion with leave to refile until the expiration of the two-year timeframe. The court th…
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Richard Pillajo appeals an order dismissing his motion for postconviction relief *566filed pursuant to Florida Rule of Criminal Procedure 8.850. We dismiss this appeal because we lack jurisdiction. Neither the dismissal of a motion filed pursuant to rule 3.850 with leave to refile nor the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) is appealable. See Williams v. State, 884 So.2d 374, 375 (Fla. 2d DCA 2004) (explaining that dismissing a pleading with leave to amend “renders the order nonfinal and nonap-pealable”); Riggs v. State, 847 So.2d 1037, 1038 (Fla. 1st DCA 2003) (explaining that “an order denying a motion to mitigate sentence is not a directly appealable order”).
In its order responding to Pillajo’s rule 3.850 postconviction motion, the court dismissed the motion with leave to refile until the expiration of the two-year timeframe for such motions. Having dismissed Pilla-jo’s motion under rule 3.850, the court then elected to consider it as having been filed as a motion for reduction or modification of sentence pursuant to rule 3.800(c). The court denied Pillajo’s motion under rule 3.800(c), but included language stating that Pillajo could appeal the order within thirty days. Taking the court’s advice, Pillajo did so. Because, the appellate court has no jurisdiction to review the exercise of a trial court’s discretion in ruling on a rule 3.800(c) motion, we dismiss this appeal. In addition, we take this opportunity to encourage the trial courts of this district to excise language concerning appellate rights from their orders on rule 3.800(c) motions.
Dismissed.
SILBERMAN, KELLY, and MORRIS, JJ., Concur.
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Citator
Cited By
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Spaulding v. State, 93 So. 3d 473 (Fla. 2d DCA 2012)
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Cochran v. State, 88 So. 3d 1031 (Fla. 2d DCA 2012)
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Armstrong v. State, 245 So. 3d 711 (Fla. 2d DCA 2018)
Authorities Cited
- Williams v. State, 884 So. 2d 374 (Fla. 2d DCA 2004)
- Anzac Contractors, Inc. v. Team Land Dev., Inc., 847 So. 2d 1037 (Fla. 3d DCA 2003)
- Riggs v. State, 847 So. 2d 1037 (Fla. 1st DCA 2003)