Opinion
Case No. 2D19-1376
10-16-2020
Jonathan SHORTRIDGE, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM. Jonathan Shortridge appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As in Croft v. State, 295 So. 3d 307 (Fla. 2d DCA 2020), the postconviction court lacked jurisdiction to withdraw a prior order that granted Mr. Shortridge's motion for postconviction relief and enter the order denying Mr. Shortridge's motion for postconviction relief. Accordingly, we reverse.
In his 3.850 motion, Mr. Shortridge argued that his sentence was unconstitutional in light of the decision in Atwell v. State, 197 So. 3d 1040 (Fla. 2016), among others. Relying on Atwell, the postconviction court granted the motion in February 2017 and ordered a resentencing hearing. The State did not appeal the order.
Two years later, while Mr. Shortridge was awaiting resentencing, the State moved for reconsideration of the postconviction court's order, relying on State v. Michel, 257 So. 3d 3 (Fla. 2018). In an order entered February 2019, the court granted the State's motion, withdrew the order granting resentencing, and denied Mr. Shortridge's motion for postconviction relief. However, the postconviction court lacked jurisdiction to withdraw the February 2017 order. See Croft, 295 So. 3d at 309 ; see also Wittemen v. State, 310 So.3d 1037, 1039 (Fla. 2d DCA Aug. 21, 2020) ("The postconviction court therefore lacked jurisdiction to rescind its original order on the basis of an untimely rehearing motion by the State."). As such, we reverse the postconviction court's February 2019 order, reinstate the February 2017 order, and remand for the postconviction court to conduct a resentencing hearing. We note, as we did in Croft, that "the decisional law effective at the time of the resentencing applies." 295 So. 3d at 309 (quoting State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011) ). Thus, it is possible that Mr. Shortridge may still receive the same sentence upon resentencing.
Reversed and remanded with instructions.
CASANUEVA, MORRIS, and LUCAS, JJ., Concur.