STEVEN D. WEHR
v.
STATE OF FLORIDA
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Once a resentencing order becomes final when neither party moves for rehearing or appeals, the postconviction court lacks authority to enter a subsequent order rescinding the original resentencing order.
[1] A postconviction court lacks authority to rescind a resentencing order that has become final by the passage of time without either party filing a motion for rehearing or…
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Join FLexlaw to unlock all legal intelligence“the order granting resentencing became final when neither party moved for rehearing or appealed the order, and, therefore, the postconviction court lacked authority to enter a subsequent order rescinding the original resentencing order”
Court's citation to Simmons v. State explaining the legal principle governing finality of resentencing orders
Appellant Wehr obtained a resentencing order in postconviction proceedings. The postconviction court subsequently rescinded the original resentencing …
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STEVEN D. WEHR,
Appellant,
v. Case No. 5D19-147
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed September 20, 2019
3.850 Appeal from the Circuit Court for Volusia County, Kathryn D. Weston, Judge.
James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
ON CONCESSION OF ERROR
PER CURIAM.
Based on the State’s concession of error, we reverse the postconviction court’s rescission of the original resentencing order and the denial of Appellant’s motion for postconviction relief. See Simmons v. State, 274 So. 3d 468, 470 (Fla. 1st DCA 2019)
2 (holding that the order granting resentencing became final when neither party moved for rehearing or appealed the order, and, therefore, the postconviction court lacked authority to enter a subsequent order rescinding the original resentencing order). We quash the order on appeal and remand with directions for the postconviction court to reinstate the order granting Appellant’s postconviction motion and to conduct a resentencing hearing. REVERSED and REMANDED. HARRIS, GROSSHANS and SASSO, JJ., concur.
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Citator
Cited By
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Keebler v. State (Fla. 5th DCA 2019)
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Magill v. State (Fla. 5th DCA 2019)
Authorities Cited
- Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019)