WALKER v. STATE (2018)

District Court of Appeal of Florida, Second District.

Torrey Dewayne WALKER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).

CASE NO.: 2D18–0231

Decided: February 13, 2018

This appeal is dismissed for lack of jurisdiction because there is no final circuit court order to review. This court notes that both the motion to correct an illegal sentence filed in the circuit court on September 19, 2017, and the motion to correct an illegal sentence filed in the circuit court on November 22, 2017, but labeled a rehearing, were both submitted under the authority of Florida Rule of Criminal Procedure 3.800(a). Rule 3.800(b)(2)(B) contains the provision automatically denying the motion if the circuit court does not rule on the motion within 60 days. Rule 3.800(a) does not.

This dismissal is without prejudice to appellant's right to file a timely notice of appeal once the circuit court enters a final appealable order disposing of the two motions to correct an illegal sentence. However, appellant can seek to compel a ruling by the circuit court on his motions to correct an illegal sentence by filing a petition for a writ of mandamus with this court. See White v. State, 805 So. 2d 917 (Fla. 2d DCA 2001). Florida Rule of Appellate Procedure 9.100 outlines the process for filing a petition for a writ of mandamus.

BY ORDER OF THE COURT:

KHOUZAM, BLACK, and ROTHSTEIN–YOUAKIM, JJ., Concur.

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