MARCELLUS EVANS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that the trial court erred by denying a rule 3.800(b) motion for lack of jurisdiction without considering its merits, as the motion was timely filed.
The petitioner filed a motion to reduce his sentence more than 60 days after his conviction was affirmed on appeal. The trial court denied the motion …
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W. SHARP, Judge.
Evans seeks certiorari review from an order of the trial court that denied his rule 3.800(b) motion, in which he sought a reduction or modification of his criminal sentence. The trial court denied the motion because of lack of jurisdiction, since the motion had been filed more than 60 days after the judgment and sentence became final. We grant the petition.
Evans argues the court departed from the essential requirements of law by not considering his motion on the merits, because his motion was timely filed. The state concedes error. Evans’ conviction for armed trafficking in cocaine and sentence were affirmed per curiam without opinion by this court on November 26, 1996. Evans v. State, 684 So. 2d 1374 (Fla. 5th DCA 1996). The mandate issued December 13, 1996. On December 27, 1996, Evans filed his rule 3.800(b) motion.
Florida Rule of Criminal Procedure 3.800(b) authorizes a trial court to modify or reduce a sentence “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.” See State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991). Although the trial court may deny such a motion in its unfettered discretion, a timely filed motion entitles a defendant to a substantive consideration on the merits. The trial court should do so. Arnold v. State, 621 So. 2d 503 (Fla. 5th DCA 1993). Accordingly, we grant the petition, quash the order reviewed, and remand for consideration on the merits.
Petition for Writ of Certiorari GRANTED; Order QUASHED; and REMANDED.
DAUKSCH and THOMPSON, JJ., concur.
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Eberheart v. State, 5 So. 3d 791 (Fla. 5th DCA 2009)…nce where the motion was considered on the merits,1 cer-tiorari review is available if the trial court determines that it lacks jurisdiction to rule on the rule 3.800(c) motion. See Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999); Evans v. State, 691 So. 2d 63 (Fla. 5th DCA 1997). In response to this Court’s show cause order, the state concedes that the circuit court had jurisdiction to consider the motion to mitigate sentence on the merits. We, therefore, grant the petition for writ of certiorari, quash…
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Summers v. State (Fla. 5th DCA 2024)…ation pursuant to Florida Rule of Criminal Procedure 3.800(c). Because the trial court did not reach the merits of the motion, we quash the circuit court’s order and remand the matter 2 for reconsideration on its merits. See Evans v. State, 691 So. 2d 63 (Fla. 5th DCA 1997). ORDER QUASHED and REMANDED with instructions. LAMBERT, EISNAUGLE, and KILBANE, JJ., concur. 3 _____________________________ Not final until disposition…
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Authorities Cited
- State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991)
- Arnold v. State, 621 So. 2d 503 (Fla. 5th DCA 1993)