Wilkins v. State

District Court of Appeal of Florida

Wilkins v. State

28 So. 3d 165, 2010 Fla. App. LEXIS 1455, 2010 WL 475280

CourtDistrict Court of Appeal of Florida

DecidedFebruary 12, 2010

Docket5D09-4175

StatusPublished

This text of 28 So. 3d 165 (Wilkins 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

Wilkins v. State, 28 So. 3d 165, 2010 Fla. App. LEXIS 1455, 2010 WL 475280 (Fla. Ct. App. 2010).

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Opinion

COHEN, J.

Joseph Wilkins appeals an order dismissing his motion to mitigate his sentence as untimely. We treat this appeal as a petition for writ of certiorari, see Eberheart v. State, 5 So.3d 791 (Fla. 5th DCA 2009), grant the petition, and quash the order.

Wilkins was sentenced on August 6, 2009, to eighteen months in the Department of Corrections for cultivating cannabis and possession with intent to sell or deliver cannabis. Forty-nine days later, on September 24, 2009, Wilkins filed a motion to mitigate his sentence, alleging that he was amenable to supervision, this was his first felony conviction, the guidelines called for a non-prison sanction, the offense was committed in an unsophisticated manner, and was an isolated incident. The motion was file stamped by the clerk of the circuit court on September 28th, fifty-three days after Wilkins was sentenced.

On October 27, 2009, the circuit court entered an order dismissing Wilkins’ motion because it believed it did not have jurisdiction to modify his sentence because “more than sixty days have past (sic) since the imposition of the sentence.” At the time of entry of the order, the trial judge did not have the benefit of our decision in Graham v. State, 24 So.3d 781 (Fla. 5th DCA 2009), which is dispositive.

Accordingly, we grant the petition for writ of certiorari and quash the order dismissing the motion to mitigate sentence.

PETITION GRANTED; ORDER QUASHED.

MONACO, C.J. and EVANDER, J., concur.

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COHEN, J.

Joseph Wilkins appeals an order dismissing his motion to mitigate his sentence as untimely. We treat this appeal as a petition for writ of certiorari, see Eberheart v. State, 5 So.3d 791 (Fla. 5th DCA 2009), grant the petition, and quash the order.

Wilkins was sentenced on August 6, 2009, to eighteen months in the Department of Corrections for cultivating cannabis and possession with intent to sell or deliver cannabis. Forty-nine days later, on September 24, 2009, Wilkins filed a motion to mitigate his sentence, alleging that he was amenable to supervision, this was his first felony conviction, the guidelines called for a non-prison sanction, the offense was committed in an unsophisticated manner, and was an isolated incident. The motion was file stamped by the clerk of the circuit court on September 28th, fifty-three days after Wilkins was sentenced.

On October 27, 2009, the circuit court entered an order dismissing Wilkins’ motion because it believed it did not have jurisdiction to modify his sentence because “more than sixty days have past (sic) since the imposition of the sentence.” At the time of entry of the order, the trial judge did not have the benefit of our decision in Graham v. State, 24 So.3d 781 (Fla. 5th DCA 2009), which is dispositive.

Accordingly, we grant the petition for writ of certiorari and quash the order dismissing the motion to mitigate sentence.

PETITION GRANTED; ORDER QUASHED.

MONACO, C.J. and EVANDER, J., concur.

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28 So. 3d 165, 2010 Fla. App. LEXIS 1455, 2010 WL 475280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkins-v-state-fladistctapp-2010.

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