Del Valle v. State

948 So. 2d 78 (2007)

Edsel I. DEL VALLE, Petitioner,
v.
STATE of Florida, Respondent.

No. 5D06-3411.

District Court of Appeal of Florida, Fifth District.

January 19, 2007.

Edsel I. Del Valle, Orlando, pro se.

Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Petitioner Edsel I. Del Valle seeks certiorari review of the trial court's order denying his motion to mitigate sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely because it was not filed within sixty days after imposition of sentence implying that it had no jurisdiction to review the motion. We hold the trial court had jurisdiction, grant the petition for writ of certiorari, and remand for consideration on the merits.

An order denying a rule 3.800(c) motion based on lack of jurisdiction is reviewable by certiorari. Staveley v. State, 866 So. 2d 1239, 1240 (Fla. 5th DCA 2004). If the trial court improperly denies the motion due to untimeliness, its order departs from the essential requirements of the law entitling the defendant to certiorari relief. Pruitt v. State, 932 So. 2d 617-18 (Fla. 1st DCA 2006).

The State correctly concedes that Del Valle's rule 3.800(c) motion for reduction or modification of sentence was timely filed. Accordingly, the trial court did possess jurisdiction to consider its merits. The State also correctly concedes that the order departs from the essential requirements of law, and that Del Valle is entitled to certiorari relief. See, e.g., Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999).

Rule 3.800(c) permits the filing of a motion to mitigate 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. . . ." The circuit court docket sheet shows the trial court received and recorded this court's mandate affirming petitioner's judgment and sentence on 15 August 2006. The docket sheet also shows Del Valle filed his motion to mitigate sentence on 25 August 2006, which is within the sixty days permitted under rule 3.800(c).

Therefore, we GRANT the petition for writ of certiorari, QUASH the order denying Del Valle's rule 3.800(c) motion for lack of jurisdiction, and REMAND for further proceedings.

PLEUS, C.J., THOMPSON and MONACO, JJ., concur.