VICTOR MONTESINO, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Victor Montesino appealed a trial court's denial of his motion to modify his sentence under Florida Rule of Criminal Procedure 3.800(c), arguing the denial was improper. The appellate court converted the appeal to a petition for writ of certiorari and denied it, finding that the 60-day filing requirement for sentence modification motions is jurisdictional and Montesino's motion filed 15 months after sentencing was untimely.
The trial court properly denied Montesino's motion as untimely because the 60-day requirement of Rule 3.800(c) is jurisdictional, and Montesino's motion filed 15 months after sentencing fell outside that jurisdiction. Denials of Rule 3.800(c) motions are not appealable but may be reviewed by petition for writ of certiorari.
[1] An order denying a motion for sentence modification under Florida Rule of Criminal Procedure 3.800(c) is not reviewable by appeal but may be reviewed under the court's ce…
[2] The sixty-day time limit for filing a motion to reduce, modify, or mitigate a sentence under Florida Rule of Criminal Procedure 3.800(c), where no direct appeal has been…
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Join FLexlaw to unlock all legal intelligence“the sixty-day requirement of Rule 3.800(c) is jurisdictional”
Establishes that the 60-day filing deadline is not merely procedural but goes to the court's fundamental jurisdiction to hear the motion.
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Join FLexlaw to unlock all legal intelligenceMontesino pleaded guilty and was sentenced to eight years imprisonment on November 16, 2015, without filing a direct appeal. On February 17, 2017—15 m…
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Victor Montesino appeals the trial court’s order denying his motion for modification of his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely because it was file.d more than sixty days after the imposition of sentence. “Such an order is not reviewable by appeal but may be reviewed under this [CJourt’s certiorari jurisdiction.” Johnson v. State, 932 So.2d 562, 562 (Fla. 3d DCA 2006) (quotation omitted; alteration in original). “We,” therefore, “treat the appeal as a petition for writ of certiorari, and deny the petition.” Iglesias v. State, 76 So.3d 370, 371 (Fla. 3d DCA 2011) (citation omitted).1
“Florida Rule of Criminal Procedure 3.800(c) provides that where no direct appeal has been filed, a motion to reduce, modify or mitigate a sentence must be filed within sixty days of the imposition of the sentence.” Id. “[T]he sixty-day requirement of Rule 3.800(c) is jurisdictional,” and “[t]he trial court properly denie[s] [a defendant’s] motion as untimely [where] it was filed more than sixty days from the date his sentence was imposed.” Hernandez v. State, 109 So.3d 865, 865 (Fla. 3d DCA 2013).
Here, Montesino pleaded guilty and was sentenced to eight years imprisonment on November 16, 2015. His motion for modification of sentence was put in the prison mailbox on February 17, 2017. Given the fifteen month gap between the imposition of Montesino’s sentence (without appeal) and his Rule 3.800(c) motion, the trial court correctly denied the motion as outside its sixty days of modification jurisdiction. And because Montesino has not shown that the trial court departed from the essential requirements of law, we deny his petition.
Petition denied.2
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lowery v. State, 914 So. 2d 455 (Fla. 5th DCA 2005)
- Norberto Iglesias v. State, 76 So. 3d 370 (Fla. 3d DCA 2011)
- Johnson v. State, 932 So. 2d 562 (Fla. 3d DCA 2006)
- Hernandez v. State, 109 So. 3d 865 (Fla. 3d DCA 2013)
- Johnson v. State, 932 So. 2d 562 (Fla. 3d DCA 2006)
- Khatrydia Dorsey v. State, 30 So. 3d 707 (Fla. 2d DCA 2010)