Summary
reaffirming that " trial court's order denying a motion brought under rule 3.800(c) is generally not appealable"
Summary of this case from Walker v. StateOpinion
No. 4D02-677.
April 24, 2002.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes, Judge; L.T. Case No. 96-2255 CF10.
Arthur E. McCalla, Jasper, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
Arthur E. McCalla, the petitioner, seeks certiorari review of the trial court's order denying his motion to reduce or modify his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. The state concedes that the court erred in denying the motion.
A trial court's order denying a motion brought under rule 3.800(c) is generally not appealable. See Lusskin v. State, 717 So.2d 1076, 1077 (Fla. 4th DCA 1998). The appellate court, however, may exercise its certiorari jurisdiction to review a case where the motion was denied for lack of jurisdiction based upon the motion's untimeliness. See Brown v. State, 707 So.2d 1191, 1192 (Fla. 2d DCA 1998); Roauer v. State, 697 So.2d 1303, 1304 (Fla. 2d DCA 1997).
Accordingly, McCalla's petition is granted and the case is remanded to the circuit court for consideration of his motion. See Shannon v. State, 765 So.2d 847 (Fla. 4th DCA 2000).
POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.