Hernandez v. State

109 So. 3d 865, 2013 WL 950369, 2013 Fla. App. LEXIS 3937

Opinion

PER CURIAM.

Matthew Hernandez appeals an order denying his motion to modify or reduce his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). As an order denying a motion to reduce or mitigate a sentence is not appealable, see, e.g., Diaz v. State, 931 So.2d 1002, 1004 (Fla. 3d DCA 2006), we treat the appeal as a petition for writ of certiorari, see Iglesias v. State, 76 So.3d 370 (Fla. 3d DCA 2011), and deny the petition.

Rule 3.800(c) allows for a reduction or modification of “a legal sentence imposed by [the court] within 60 days after the imposition....” Fla. R.Crim. P. 3.800(c).

Hernandez was sentenced on January 10, 2012. No appeal was taken from the judgment or sentence. Hernandez filed the instant motion to modify his sentence on August 21, 2012. The trial court properly denied Hernandez’s motion as untimely because it was filed more than sixty days from the date his sentence was imposed and the sixty-day requirement of Rule 3.800(c) is jurisdictional. E.g., State v. Woodard, 866 So.2d 120, 121 (Fla. 4th DCA 2004).

Petition denied.