Terrero v. State

District Court of Appeal of Florida

Terrero v. State

198 So. 3d 653, 2015 Fla. App. LEXIS 17027, 2015 WL 7081277

CourtDistrict Court of Appeal of Florida

DecidedNovember 13, 2015

Docket2D14-5294

StatusPublished

This text of 198 So. 3d 653 (Terrero 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

Terrero v. State, 198 So. 3d 653, 2015 Fla. App. LEXIS 17027, 2015 WL 7081277 (Fla. Ct. App. 2015).

Pincite

Opinion

LaROSE, Judge.

Deborah Terrero seeks certiorari review of the trial court’s order denying, as untimely, her motion to reduce or mitigate sentence. See Fla. R. Crim. P. 3.800(c). We have jurisdiction. See Kwapil v. State, 44 So.3d 229, 230 (Fla. 2d DCA 2010) (“A circuit court order dismissing a rule 3.800(c) motion as untimely may be reviewed by petition for certiorari in the district court”).

As the State properly concedes, Ms. Terrero timely filed her Florida Rule of Criminal Procedure 3.800(c) motion on July 28, 2014, within sixty days of her voluntary dismissal of her direct appeal. See Fla. R. Crim. P. 3.800(c). Nevertheless, the trial court dismissed her motion to mitigate, stating that “[bjecause more than 60 days has elapsed since the receipt of a certified copy of an order of the appellate court, the Court does not have jurisdiction to reduce or modify sentence.” In fact, the trial court had until September 26, 2014, and a reasonable time thereafter, to rule on the motion.

The prevailing authority explains that “[a] trial court does not lose jurisdiction to modify a sentence when the motion is filed within the sixty-day time period as long as the trial court rules on the motion within a reasonable time.” Kwapil, 44 So.3d at 230 (quoting Schlabaeh v. State, 37 So.3d 230, 239 (Fla.2010) (holding that a trial court does not lose jurisdiction solely because no hearing was scheduled and no order was entered within the sixty-day time period)).

Accordingly, we grant the petition, quash the trial court’s dismissal order, and remand for the trial court to address the merits of Ms. Terrero’s rule 3.800(c) motion.

KHOUZAM and BLACK, JJ., Concur.

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

LaROSE, Judge.

Deborah Terrero seeks certiorari review of the trial court’s order denying, as untimely, her motion to reduce or mitigate sentence. See Fla. R. Crim. P. 3.800(c). We have jurisdiction. See Kwapil v. State, 44 So.3d 229, 230 (Fla. 2d DCA 2010) (“A circuit court order dismissing a rule 3.800(c) motion as untimely may be reviewed by petition for certiorari in the district court”).

As the State properly concedes, Ms. Terrero timely filed her Florida Rule of Criminal Procedure 3.800(c) motion on July 28, 2014, within sixty days of her voluntary dismissal of her direct appeal. See Fla. R. Crim. P. 3.800(c). Nevertheless, the trial court dismissed her motion to mitigate, stating that “[bjecause more than 60 days has elapsed since the receipt of a certified copy of an order of the appellate court, the Court does not have jurisdiction to reduce or modify sentence.” In fact, the trial court had until September 26, 2014, and a reasonable time thereafter, to rule on the motion.

The prevailing authority explains that “[a] trial court does not lose jurisdiction to modify a sentence when the motion is filed within the sixty-day time period as long as the trial court rules on the motion within a reasonable time.” Kwapil, 44 So.3d at 230 (quoting Schlabaeh v. State, 37 So.3d 230, 239 (Fla.2010) (holding that a trial court does not lose jurisdiction solely because no hearing was scheduled and no order was entered within the sixty-day time period)).

Accordingly, we grant the petition, quash the trial court’s dismissal order, and remand for the trial court to address the merits of Ms. Terrero’s rule 3.800(c) motion.

KHOUZAM and BLACK, JJ., Concur.

Cite This Page — Counsel Stack

Bluebook (online)

198 So. 3d 653, 2015 Fla. App. LEXIS 17027, 2015 WL 7081277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terrero-v-state-fladistctapp-2015.

Opinion

Related

Cite This Page — Counsel Stack