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Date: 12-01-2020
Case Style:
DAWN KIRKCONNELL, vs THE STATE OF FLORIDA
Case Number: 20-1356
Judge: Eric Hendon
Court: Third District Court of Appeal
State of Florida
Plaintiff's Attorney: Ashley Moody, Attorney General
Defendant's Attorney:
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Description:
Miami, Florida - Criminal defense lawyer represented defendant Dawn Kirkconnell with appealing from the trial court’s denial of her motion to reduce or modify her sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). .
Florida Rule of Criminal Procedure 3.800(c).Rule 3.800(c) provides that, where no direct appeal has been filed, “[a] court may
reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a
legal sentence imposed by it, sua sponte, or upon motion filed, within [sixty] days
after the imposition.” Ms. Kirkconnell’s sentence was entered on February 12, 2020,
and by the time Ms. Kirkconnell filed her rule 3.800(c) motion on June 16, 2020, the
sixty-day time period in which to file had expired. The trial court accordingly denied
her 3.800(c) motion to mitigate because it was untimely filed more than sixty days
after imposition of sentence.
“[T]he sixty-day requirement of Rule 3.800(c) is jurisdictional,” and “[t]he
trial court properly denie[s] [a defendant’s] motion as untimely [where] it was filed
more than sixty days from the date his sentence was imposed.” Hernandez v. State,
109 So. 3d 865, 865 (Fla. 3d DCA 2013); Berki v. State, 298 So. 3d 1169 (Fla. 3d
DCA 2020) (dismissing the appeal, as the lower tribunal's order denying, on the
merits, a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence
is not an appealable order) (citations omitted). However, a circuit court order
dismissing a rule 3.800(c) motion as untimely may be reviewed by petition for writ
of certiorari in the district court. Kwapil v. State, 44 So. 3d 229, 230 (Fla. 2d DCA
2010); Velazquez v. State, 917 So. 2d 306, 306 (Fla. 2d DCA 2005). Because the
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trial court did not deny Kirkconnell’s petition on the merits, we treat the appeal as a
petition for certiorari, and deny the same. See Montesino v. State, 231 So. 3d 514
(Fla. 3d DCA 2017); Hernandez v. State, 109 So. 3d 865 (Fla. 3d DCA 2013).
Outcome: Petition denied.
Plaintiff's Experts:
Defendant's Experts:
Comments: