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Moya v. State

District Court of Appeal of Florida, Second District
Feb 16, 1996
668 So. 2d 279 (Fla. Dist. Ct. App. 1996)

Summary

holding that pursuant to this Court's decision in Abreu and rule 3.050, the trial court can and should sua sponte enlarge the time for ruling on such a motion when the court is unable to rule upon a timely filed motion to mitigate within the allotted sixty-day window

Summary of this case from Schlabach v. State

Opinion

No. 95-00371.

February 16, 1996.

Petition for Writ of Certiorari to the Circuit Court for Polk County; Daniel True Andrews, Judge.


Christopher M. Moya appeals an order denying his motion to mitigate sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(b). Such an order is not appealable, but may be reviewed in an extraordinary case under this court's certiorari jurisdiction. Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993); Smith v. State, 471 So.2d 1347 (Fla. 2d DCA 1986), approved sub nom., Abreu v. State, 660 So.2d 703 (Fla. 1995).

Mr. Moya was sentenced to prison on October 10, 1995, following revocation of probation. He mailed his pro se motion to mitigate to the court in early November. It was filed on November 8, 1995, well within the sixty-day period during which a trial court can mitigate a legal sentence.

The trial court took no action on the motion until December 20, 1995. On that day, it entered an order dismissing the motion for lack of jurisdiction. Thus, the trial court did not consider the merits of Mr. Moya's timely motion merely because the court itself did not timely review the motion.

Recently, the supreme court held in Abreu that within a reasonable period, a trial court has jurisdiction to grant a party's motion for enlargement of time under rule 3.050 in order to review a timely-filed rule 3.800(b) motion to mitigate. 660 So.2d at 705. Rule 3.050 also permits a trial court, on its own motion, to enlarge time for such filing. Thus, the trial court departed from the essential requirements of the law when it dismissed the motion to mitigate for lack of jurisdiction. The trial court had jurisdiction to determine whether it should enlarge time under these circumstances to review the timely-filed motion.

Accordingly, we quash the trial court's order, and remand for further proceedings consistent with this opinion. We express no opinion on the merits of Mr. Moya's motion.

Petition for writ of certiorari granted, order quashed, and cause remanded with directions.

FRANK, A.C.J., and LAZZARA, J., concur.


Summaries of

Moya v. State

District Court of Appeal of Florida, Second District
Feb 16, 1996
668 So. 2d 279 (Fla. Dist. Ct. App. 1996)

holding that pursuant to this Court's decision in Abreu and rule 3.050, the trial court can and should sua sponte enlarge the time for ruling on such a motion when the court is unable to rule upon a timely filed motion to mitigate within the allotted sixty-day window

Summary of this case from Schlabach v. State

during the 60-day period, the trial court "had jurisdiction to determine whether it should enlarge time under the circumstances to review the timely-filed motion"

Summary of this case from McCormick v. State

In Moya v. State, 668 So.2d 279 (Fla. 2d DCA 1996), we required a trial court to decide whether it should have raised and granted its own motion for enlargement of time when the court itself was the cause of a lengthy delay in processing such a motion.

Summary of this case from Brantley v. Holloway
Case details for

Moya v. State

Case Details

Full title:CHRISTOPHER M. MOYA, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Feb 16, 1996

Citations

668 So. 2d 279 (Fla. Dist. Ct. App. 1996)

Citing Cases

Schlabach v. State

The Second District's precedent on this issue is long-established. See Moya v. State, 668 So.2d 279, 280…

Smith v. State

Orders denying such relief are not reviewable by appeal, but we may review them under our certiorari…