COLLINS v. STATE (2018)

This appeal is dismissed for lack of jurisdiction because there is no circuit court order to review. The notice which initiated this appeal states: “The nature of the order is a final judgment denying the defendant motion to correct illegal sentence in which the Honorable Lower Court failed to answer in 60 days, in which motion is consider denied.” Attached to the notice is a motion to correct an illegal sentence which does not contain a prison date stamp but is dated January 9, 2018, by appellant and is described as pursuant to Florida Rule of Criminal Procedure 3.800(a).

However, only rule 3.800(b)(2)(B), which is not applicable to appellant's circumstances, contains a provision automatically denying a motion if the circuit court does not rule on the motion within 60 days. Rule 3.800(a) does not. Therefore, appellant's motion could not have been automatically denied by the passage of time without a ruling.

More importantly, the progress docket included in the record for this appeal which was prepared by the clerk of the circuit court for Polk County in regard to circuit court case number 2009CF-001897-01 does not show receipt of appellant's motion to correct an illegal sentence by the clerk of the circuit court. If appellant still intends to seek a circuit court ruling on this motion, appellant must file the motion directly with the Polk County Clerk of the Circuit Court.

BY ORDER OF THE COURT:

SILBERMAN, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.