5D03-3604 Patrick Stavely v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3604

Case Date: 01/12/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

PATRICK R. STAVELEY, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed January 16, 2004 3.800 Appeal from the Circuit Court for Volusia County, S. James Foxman, Judge. 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 CASE NO. 5D03-3604

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). 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.
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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.

State , 821 So. 2d 416 (Fla. 2d DCA 2002). -2-

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