Opinion
3D24-0003
05-29-2024
Brendan Lee, Appellant, v. The State of Florida, Appellee.
Brendan Lee, in proper person. Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
Not final until disposition of timely filed motion for rehearing.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Lower Tribunal No. F21-1110, Teresa Mary Pooler, Judge.
Brendan Lee, in proper person.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
Before EMAS, GORDO and BOKOR, JJ.
EMAS, J.
Brendan Lee appeals the trial court's order denying his pro se motion, which purported to challenge the legality of his sentence. However, Lee's motion did not allege that his sentence was illegal, nor did he allege any record evidence that would support such an allegation. See Fla. R. Crim. P. 3.800(a) (providing that a motion to correct illegal sentence must "affirmatively allege[] that the court records demonstrate on their face an entitlement to that relief"); see also Johnson v. State, 60 So.3d 1045 (Fla. 2011) (recognizing that rule 3.800(a) places the burden on the movant to demonstrate an entitlement to relief on the face of the record); Cox v. State, 221 So.3d 723, 725 n.5 (Fla. 3d DCA 2017) ("[A] motion to correct illegal sentence under rule 3.800(a) may be filed at any time, but must be determined as a matter of law, without an evidentiary hearing, based upon an error apparent on the face of the court record. Given the absence of any time limitation for filing such a motion, and the unavailability of an evidentiary hearing, the burden is on the movant to demonstrate that the trial court's error and the defendant's entitlement to relief are apparent from the face of the record.")
Instead, Lee's motion asserts that he was eligible to be sentenced as a Youthful Offender (see §§ 958.011-958.15, Florida Statutes (2021)) and requested the trial court exercise its discretion to modify his sentence to reflect one imposed under the Youthful Offender Act. Lee asserts a sentence under the Youthful Offender statute would be approximately six years, rather than the ten-year, mandatory-minimum sentence Lee represents he is currently serving.
The motion filed in the trial court was not a motion to correct an illegal sentence pursuant to rule 3.800(a), but rather a motion to reduce or modify a sentence pursuant to rule 3.800(c). While the trial court has broad discretion in ruling on such a motion, this court's authority to review an order denying such a motion is quite limited. Indeed, we generally characterize an order denying on its merits a motion to modify or reduce sentence pursuant to rule 3.800(c) as a nonappealable order. See Kirkconnell v. State, 309 So.3d 259 (Fla. 3d DCA 2020); Berki v. State, 298 So.3d 1169 (Fla. 3d DCA 2020).
Moreover, to the extent Lee sought modification of his legal sentence, the motion was untimely. Rule 3.800(c) requires a motion to modify or reduce sentence to be filed within 60 days after imposition of the sentence. Lee was sentenced by the trial court on November 9, 2021, pursuant to a negotiated plea. Because no appeal was taken from that judgment and sentence, Lee was required to file his motion to reduce or modify sentence no later than January 8, 2022. Lee filed his motion on September 18, 2023, more than eighteen months later. The sixty-day requirement is considered a "jurisdictional" defect, Hernandez v. State, 109 So.3d 865, 865 (Fla. 3d DCA 2013) (citing State v. Woodard, 866 So.2d 120, 121 (Fla. 4th DCA 2004)), leaving the trial court without continuing jurisdiction (also referred to as "case jurisdiction" or "procedural jurisdiction") to consider the merits of a motion seeking to reduce or modify Lee's sentence.
Where an appeal is taken from the judgment or sentence, rule 3.800(c) requires the motion be filed within 60 days after the imposition, or 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, or within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.
See, e.g., Sanchez v. Sanchez, 285 So.3d 969, 974 (Fla. 3d DCA 2019); Renovaship, Inc. v. Quatremain, 208 So.3d 280, 283 n.6 (Fla. 3d DCA 2016).
Affirmed.