Muller v. State

938 So. 2d 609, 2006 WL 2805138

Opinion

938 So.2d 609 (2006)

ANTONIO MULLER, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 1D04-4635.

District Court of Appeal of Florida, First District.

Opinion filed October 3, 2006.

Antonio Muller, pro se, Petitioner.

Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

Petitioner seeks certiorari review of the trial court's denial of his motion for mitigation of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Although an order denying a motion to mitigate sentence on the merits is not appealable, an appellate court may exercise its certiorari jurisdiction to review a case where, as in the instant case, the motion was denied for lack of jurisdiction based on the motion's untimeliness. See Atkins v. State, 851 So. 2d 829 (Fla. 1st DCA 2003); Jolly v. State, 803 So. 2d 846 (Fla. 1st DCA 2001). In this case, petitioner's motion was filed within 60 days of this court's issuance of mandate on petitioner's direct appeal. Therefore, the trial court had jurisdiction to consider petitioner's motion, and its failure to do so is a departure from the essential requirements of the law. See Atkins; Jolly.

Accordingly, we grant the petition for writ of certiorari, vacate the order, and remand with directions to consider petitioner's motion on its merits.

ERVIN, WEBSTER, and THOMAS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.