Durden v. State

948 So. 2d 1045, 2007 Fla. App. LEXIS 2602, 2007 WL 548824

• Court: District Court of Appeal of Florida
• Decided: February 23, 2007
• Docket: No. 2D06-3299
• Status: Published

Opinion

WALLACE, Judge.

David P. Durden appeals the summary denial of his motion to correct sentencing errors filed in accordance with Florida Rule of Criminal Procedure 3.800(b)(1). The trial court concluded that Mr. Dur-den’s motion was untimely, treated the motion as if it had been filed under rule 3.800(a), and denied the motion on the merits. We reverse the trial court’s summary denial of Mr. Durden’s motion to correct sentencing errors, and we remand for further proceedings consistent with this opinion.

Rule 3.800(b)(1) allows defendants in criminal cases to file a motion to correct sentencing errors in the trial court during the time allowed for the filing of a notice of appeal of the sentence. In conjunction with rule 3.800(b)(1), Florida Rule of Appellate Procedure 9.020(h) delays the rendition of the final order until the trial court disposes of the rule 3.800(b)(1) motion.¹ Therefore, a defendant has thirty days to file a notice of appeal after the trial court rules on any sentencing error preserved by a 3.800(b)(1) motion.

On September 12, 2005, the trial court resentenced Mr. Durden in case numbers CRC93-07740CFANO-A and CRC94-00832CFANO-A. On October 11, 2005, twenty-nine days later, Mr. Durden timely filed his rule 3.800(b)(1) in both cases. Therefore, the trial court erred in concluding that Mr. Durden’s motion was untimely and incorrectly treated it as a rule 3.800(a) motion.

For these reasons, we reverse the trial court’s summary denial of Mr. Durden’s motion to correct sentencing errors. On remand, the trial court shall treat the motion as having been filed under rule 3.800(b)(1) and rule on the motion accordingly. If the trial court does not rule on the motion within sixty days of the issuance of this court’s mandate, then the motion shall be considered to be denied. We note that Mr. Durden will have thirty days from the disposition of his motion within which to appeal his resentencing.

Reversed and remanded for proceedings consistent with this opinion.

ALTENBERND and CASANUEVA, JJ., Concur.

1 . If the trial court does not file an order ruling on the motion within sixty days, the motion is deemed to be denied. Fla. R.Crim. P. 3.800(b)(1)(B).