Atkins v. State , 851 So. 2d 829 ( 2003 )

851 So.2d 829 (2003)

Terence C. ATKINS, Petitioner,
v.
STATE of Florida, Respondent.

No. 1D03-0444.

District Court of Appeal of Florida, First District.

July 31, 2003.

Petitioner, pro se.

Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

Petitioner filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. However, pursuant to the "mailbox rule," the motion was filed within 60 days of this court's issuance of mandate on petitioner's direct appeal. Accordingly, the motion was timely. See Jolly v. State, 803 So.2d 846 (Fla. 1st DCA 2001). Thus, the trial court had jurisdiction to consider petitioner's motion on the merits, and its failure to do so is a departure from the essential requirements of the law. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

Accordingly, we grant the petition for writ of certiorari, vacate the order, and remand with directions to consider petitioner's motion on its merits.

KAHN, WEBSTER and POLSTON, JJ., concur.