Eberheart v. State

District Court of Appeal of Florida

Eberheart v. State

5 So. 3d 791, 2009 Fla. App. LEXIS 2662, 2009 WL 790162

CourtDistrict Court of Appeal of Florida

DecidedMarch 27, 2009

Docket5D08-4487

StatusPublished

Cited by2 cases

This text of 5 So. 3d 791 (Eberheart v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eberheart v. State, 5 So. 3d 791, 2009 Fla. App. LEXIS 2662, 2009 WL 790162 (Fla. Ct. App. 2009).

Pincite

Opinion

PER CURIAM.

Petitioner seeks certiorari review of a circuit court order which denied his rule 3.800(c) motion to mitigate his sentence as untimely. The circuit court noted that petitioner was sentenced on February 12, 2008, but did not file his 3.800(c) motion to mitigate sentence until November 13, 2008, 274 days later. The court, therefore, ruled that it was without jurisdiction to entertain the motion. We grant the writ.

The circuit court overlooked the fact that petitioner directly appealed his sentence and this Court affirmed on October 7, 2008. See Eberheart v. State, 992 So.2d 270 (Fla. 5th DCA 2008). The mandate issued on October 24, 2008. Florida Rule of Criminal Procedure 3.800(c) provides that a court may reduce or modify a sentence within sixty days after its imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence. Petitioner’s 3.800(c) motion was filed within sixty days of our mandate.

Although a defendant may not appeal an order denying a rule 3.800(c) motion to mitigate or modify a sentence where the motion was considered on the merits, 1 cer-tiorari review is available if the trial court determines that it lacks jurisdiction to rule on the rule 3.800(c) motion. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999); Evans v. State, 691 So.2d 63 (Fla. 5th DCA 1997).

In response to this Court’s show cause order, the state concedes that the circuit court had jurisdiction to consider the motion to mitigate sentence on the merits. We, therefore, grant the petition for writ of certiorari, quash the order and remand for further proceedings. See Ukaj v. State, 969 So.2d 1172 (Fla. 5th DCA 2007).

WRIT GRANTED, ORDER QUASHED.

PALMER, C.J., GRIFFIN and MONACO, JJ., concur.

1

. See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Petitioner seeks certiorari review of a circuit court order which denied his rule 3.800(c) motion to mitigate his sentence as untimely. The circuit court noted that petitioner was sentenced on February 12, 2008, but did not file his 3.800(c) motion to mitigate sentence until November 13, 2008, 274 days later. The court, therefore, ruled that it was without jurisdiction to entertain the motion. We grant the writ.

The circuit court overlooked the fact that petitioner directly appealed his sentence and this Court affirmed on October 7, 2008. See Eberheart v. State, 992 So.2d 270 (Fla. 5th DCA 2008). The mandate issued on October 24, 2008. Florida Rule of Criminal Procedure 3.800(c) provides that a court may reduce or modify a sentence within sixty days after its imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence. Petitioner’s 3.800(c) motion was filed within sixty days of our mandate.

Although a defendant may not appeal an order denying a rule 3.800(c) motion to mitigate or modify a sentence where the motion was considered on the merits, 1 cer-tiorari review is available if the trial court determines that it lacks jurisdiction to rule on the rule 3.800(c) motion. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999); Evans v. State, 691 So.2d 63 (Fla. 5th DCA 1997).

In response to this Court’s show cause order, the state concedes that the circuit court had jurisdiction to consider the motion to mitigate sentence on the merits. We, therefore, grant the petition for writ of certiorari, quash the order and remand for further proceedings. See Ukaj v. State, 969 So.2d 1172 (Fla. 5th DCA 2007).

WRIT GRANTED, ORDER QUASHED.

PALMER, C.J., GRIFFIN and MONACO, JJ., concur.

1

. See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

Cite This Page — Counsel Stack

Bluebook (online)

5 So. 3d 791, 2009 Fla. App. LEXIS 2662, 2009 WL 790162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eberheart-v-state-fladistctapp-2009.

Opinion

Related

Cite This Page — Counsel Stack