DAWN KIRKCONNELL v. State

• Court: District Court of Appeal of Florida
• Decided: November 25, 2020
• Docket: 20-1356
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 25, 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1356 Lower Tribunal No. 16-7234A ________________

Dawn Kirkconnell, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Ramiro C. Areces, Judge.

Dawn Kirkconnell, in proper person.

Ashley Moody, Attorney General, for appellee.

Before FERNANDEZ, HENDON, and LOBREE, JJ.

HENDON, J. Dawn Kirkconnell appeals from the trial court’s denial of her motion to reduce

or modify her sentence pursuant to Florida Rule of Criminal Procedure 3.800(c).

Rule 3.800(c) provides that, where no direct appeal has been filed, “[a] court may

reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a

legal sentence imposed by it, sua sponte, or upon motion filed, within [sixty] days

after the imposition.” Ms. Kirkconnell’s sentence was entered on February 12, 2020,

and by the time Ms. Kirkconnell filed her rule 3.800(c) motion on June 16, 2020, the

sixty-day time period in which to file had expired. The trial court accordingly denied

her 3.800(c) motion to mitigate because it was untimely filed more than sixty days

after imposition of sentence.

“[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); Berki v. State, 298 So. 3d 1169 (Fla. 3d

DCA 2020) (dismissing the appeal, as the lower tribunal's order denying, on the

merits, a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence

is not an appealable order) (citations omitted). However, a circuit court order

dismissing a rule 3.800(c) motion as untimely may be reviewed by petition for writ

of certiorari in the district court. Kwapil v. State, 44 So. 3d 229, 230 (Fla. 2d DCA

2010); Velazquez v. State, 917 So. 2d 306, 306 (Fla. 2d DCA 2005). Because the

2 trial court did not deny Kirkconnell’s petition on the merits, we treat the appeal as a

petition for certiorari, and deny the same. See Montesino v. State, 231 So. 3d 514

(Fla. 3d DCA 2017); Hernandez v. State, 109 So. 3d 865 (Fla. 3d DCA 2013).

Petition denied.