Powell v. State

979 So. 2d 1062, 2008 Fla. App. LEXIS 4359, 2008 WL 782869

Opinion

PER CURIAM.

Joshua Powell, pro se, appeals the trial court’s denial of his motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800. The trial court denied the motion for lack of jurisdiction, noting that it was filed November 15, 2007, over sixty days after Powell was sentenced.

Under Rule 3.800(c), a motion to mitigate sentence is also timely if filed “within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal.” In this ease, Powell claims this Court’s mandate in a prior appeal, Powell v. State, 963 So.2d 717 (Fla. 3d DCA 2007), was entered October 12, 2007, such that his motion was timely.

However, the prior case in this Court referred to by Powell was not an original appeal from the judgment or sentence. Rather, that case reviewed the denial of other post-conviction motions by Powell. As a result, the trial court correctly held that Powell’s 2007 motion to mitigate was untimely.

Affirmed.