BACCHUS v. STATE (2007)

District Court of Appeal of Florida,First District.

Marvin BACCHUS, Petitioner, v. STATE of Florida, Respondent.

No. 1D06-5272.

Decided: May 31, 2007

Marvin Bacchus, pro se, Petitioner. Bill McCollum, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.

Petitioner seeks certiorari review of the trial court's denial of his motion for mitigation of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the Petitioner's motion on the mistaken belief that it no longer had jurisdiction to rule. Because the motion was filed within 60 days of the date that mandate issued in the Petitioner's direct appeal, the motion was timely. See Fla. R.Crim. P. 3.800(c). Therefore, the trial court had jurisdiction to consider petitioner's motion, and its failure to do so is a departure from the essential requirements of the law. Atkins v. State, 851 So.2d 829 (Fla. 1st DCA 2003).

Accordingly, we grant the petition for writ of certiorari, vacate the order denying petitioner's rule 3.800(c) motion for lack of jurisdiction, and remand with directions to consider petitioner's motion on its merits.

PER CURIAM.

BARFIELD, KAHN, and PADOVANO, JJ., concur.

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