FIDENSIO GALLEGOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An order entered on a rule 3.800(b)(2) motion outside the permitted time is a nullity and must be stricken.
Mr. Gallegos filed a motion to correct sentence. The trial court failed to rule on the motion within the sixty-day period allowed by rule. The trial c…
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We affirm Mr. Gallegos’ judgments and sentences without comment. However, we write to direct the trial court on remand to strike the postsentence order that it entered without jurisdiction.
On August 5, 2010, while this appeal was pending, Mr. Gallegos filed in the trial court a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court must rule on such a motion within sixty days of filing or it is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B). However, it did not issue an order on the motion until January 20, 2011, long after the sixty days had passed. That order found that Mr. Gallegos’ claims had merit and gave the State twenty days to choose between two alternative types of relief.
“When a trial court enters an order on a rule 3.800(b)(2) motion outside of the time permitted for ruling on such a motion, the order is deemed a nullity and must be stricken.” Miran v. State, 46 So.3d 186, 188 (Fla. 2d DCA 2010); see also Mapp v. State, 18 So.3d 33, 37 (Fla. 2d DCA 2009) (striking an out-of-time order granting a rule 3.800(b) motion); Jackson v. State, 950 So.2d 1267, 1267 (Fla. 2d DCA 2007) (holding that an order rendered more than sixty days after the filing of a rule 3.800(b)(2) motion was a nullity). Therefore, while we affirm the judgments and sentences, we must remand to the trial court to strike the January 20, 2011, order and any subsequent orders entered on the rule 3.800(b)(2) motion.
Judgments and sentences affirmed; remanded with instructions.
VILLANTI and LaROSE, JJ., Concur.
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Kalvin Youman v. State, 112 So. 3d 693 (Fla. 1st DCA 2013)…71, 1D12-2473, 1D12-2474, and 1D12-2475. Because the court failed to rule on this motion within sixty days in 1D12-2470 and 1D12-2472, however, the motion is deemed denied as to these two cases. See Fla. R.Crim. P. 3.800(b)(2)(B); Gallegos v. State, 63 So. 3d 20 (Fla. 2d DCA 2011); Long v. State, 886 So. 2d 280, 281 (Fla. 1st DCA 2004). Anders counsel argues that, because the trial court imposed the $100 cost without informing Youman of his right to contest the amount of the lien, this cost must be stricke…
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Williams v. State, 72 So. 3d 285 (Fla. 1st DCA 2011)…ial court enters an order on a rule 3.800(b)(2) motion outside of the time permitted for ruling on such a motion, the order is deemed a nullity and must be stricken.” Miran v. State, 46 So. 3d 186, 188 (Fla. 2d DCA 2010); see also Gallegos v. State, 63 So. 3d 20, 20 (Fla. 2d DCA 2011) (striking an untimely order on a rule 3.800(b)(2) motion). Therefore, we affirm the judgments and sentences and remand with directions for the trial court to strike the order granting the motion and to strike the amended judgm…
Authorities Cited
- Mapp v. State, 18 So. 3d 33 (Fla. 2d DCA 2009)
- Seyed R. Miran v. State, 46 So. 3d 186 (Fla. 2d DCA 2010)
- S.H. v. Dep't OF Child. & Families, 950 So. 2d 1267 (Fla. 5th DCA 2007)
- Jackson v. State, 950 So. 2d 1267 (Fla. 2d DCA 2007)