Staveley v. State

866 So. 2d 1239 (2004)

Patrick R. STAVELEY, Appellant,
v.
STATE of Florida, Appellee.

No. 5D03-3604.

District Court of Appeal of Florida, Fifth District.

January 16, 2004. Rehearing Denied February 25, 2004.

Steven G. Mason, of Law Offices of Steven G. Mason, Orlando.

No Appearance for Appellee.

PER CURIAM.

Defendant, Patrick Staveley ["Staveley"], has appealed an order denying his rule 3.800(c) motion to mitigate sentence on the basis that the motion was untimely. An order denying a rule 3.800(c) motion usually is not an appealable order, because the trial court's ruling is purely discretionary;^[1] however, an order denying a rule 3.800(c) motion on the basis of lack of jurisdiction is reviewable by certiorari.^[2] Because the trial court denied Staveley's motion as untimely, the order is reviewable by certiorari. We accordingly treat Staveley's appeal as a petition for writ of certiorari. On the merits, we deny the petition for writ of certiorari because the motion to mitigate was untimely filed.

WRIT DENIED.

SAWAYA, C.J., GRIFFIN and PLEUS, JJ., concur.

NOTES

[1] See, e.g., Rector v. State, 852 So. 2d 910 (Fla. 1st DCA 2003); Wilson v. State, 846 So. 2d 1220 (Fla. 5th DCA 2003); McDonald v. State, 840 So. 2d 371 (Fla. 1st DCA 2003); Adams v. State, 800 So. 2d 741 (Fla. 5th DCA 2001).

[2] See Ward v. State, 854 So. 2d 260 (Fla. 1st DCA 2003); Haber v. State, 849 So. 2d 1148 (Fla. 5th DCA 2003); Pitts v. State, 837 So. 2d 518 (Fla. 1st DCA 2003); Lancaster v. State, 821 So. 2d 416 (Fla. 2d DCA 2002).