HARTLEY 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 court has not ruled in the required mandated 60 days. Pursuant to Rule, the 3.800 is denied.”

A motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) is only authorized when there is a pending direct appeal of a sentence. See Perry v. State, 849 So. 2d 324 (Fla. 2d DCA 2003).

Rule 3.800(b)(2), 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. However, rule 3.800(a) does not. Therefore, the motion identified in the notice of appeal could not have been automatically denied by the passage of time without a ruling. If appellant did file a rule 3.800(a) motion as alleged in the notice of appeal, appellant can seek to compel the circuit court to rule on the motion 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:

SILBERMAN, VILLANTI, and CRENSHAW, JJ., Concur.