Velazquez v. State

917 So. 2d 306, 2005 WL 3481388

• Court: District Court of Appeal of Florida
• Decided: December 21, 2005
• Docket: 2D05-2875
• Status: Published

Opinion

917 So.2d 306 (2005)

JUAN E. VELAZQUEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-2875.

District Court of Appeal of Florida, Second District.

December 21, 2005.

SILBERMAN, Judge.

Juan E. Velazquez appeals an order denying his motion for mitigation of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Such an order is not reviewable by appeal but may be reviewed under this court's certiorari jurisdiction. See Seward v. State, 912 So.2d 389, 390 (Fla. 2d DCA 2005); Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996). We therefore convert this appeal to a petition for writ of certiorari.

Velazquez's judgment and sentence became final on September 30, 2002. Although his motion to mitigate asserted that it was based on newly discovered evidence, he did not file the motion within the time periods provided for in rule 3.800(c). Therefore, we deny the petition for writ of certiorari. However, our denial is without prejudice to whatever right Velazquez may have to file a timely, legally sufficient motion to vacate, set aside, or correct his sentence under Florida Rule of Criminal Procedure 3.850 based on newly discovered evidence. We note that if Velazquez is successful in obtaining relief, he may be subject to a longer term of imprisonment than the sentence he is presently serving. See Green v. State, 857 So.2d 304, 306 (Fla. 2d DCA 2003).

Petition denied.

WHATLEY and NORTHCUTT, JJ., Concur.