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Watkins v. State

Florida Court of Appeals, Third District

April 26, 2017

Calvin Watkins, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Lower Tribunal Nos. 08-21731, 08-22479, 08-22491, 08-24743, 08-29745, 08-33667 Stacy Glick, Judge.

          Calvin Watkins, in proper person.

          Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.

          Before SUAREZ, C.J., and LAGOA and LUCK, JJ.

         ON MOTION TO DISMISS

          LAGOA, J.

         Calvin Watkins ("Watkins") appeals from an order denying his motion to correct illegal sentence and from an order denying his motion for rehearing. The State of Florida (the "State") moves to dismiss the appeal as untimely. We grant the motion to dismiss the appeal.

         I. FACTUAL AND PROCEDURAL HISTORY

         Pursuant to Florida Rule of Criminal Procedure 3.800(a), Watkins filed a motion to correct illegal sentence alleging that the trial court was without jurisdiction to find a violation of community control. The State served a response to the motion and Watkins filed a reply.

         On September 28, 2016, the trial court entered a written order denying the motion to correct illegal sentence. The order was filed with the Clerk on the same date, and the certificate of service stamp on the order certifies that on September 30, 2016, the order was furnished to Watkins by mail.

         On October 25, 2016, pursuant to the mailbox rule, [1] Watkins filed a motion for rehearing. In the motion for rehearing, Watkins asserted that "[o]n September 28, 2016, [the trial] Court entered an order summarily denying Watkins' [sic] 3.800(a) motion to correct illegal sentence." Watkins further asserted that "[t]he date of service was October 13, 2016" and therefore the motion for rehearing was "timely filed where, by rule, it is being filed within 15 days from the date of service." In support of his argument, Watkins attached the trial court's order. A review of the order attached to Watkins's motion for rehearing shows two stamps: (1) a certificate of service stamp from the deputy clerk stating that the order "has been furnished to" Watkins on September 30, 2016; and (2) another stamp dated October 13, 2016, from the same deputy clerk, which certifies that the document is a true and correct copy of the order.

         On November 9, 2016, the trial court entered a written order denying Watkins's motion for rehearing. The certificate of service shows that a copy of the order denying the rehearing motion was furnished on November 30, 2016, by mail to Watkins.

         On November 16, 2016, pursuant to the mailbox rule, Watkins filed a Notice of Appeal with this Court. In his Notice of Appeal, Watkins argued that although he had "never received an order denying his motion for rehearing" the motion was deemed denied, pursuant to Florida Rule of Criminal Procedure 3.850(j), [2] if no order was filed within forty days from the date of the order denying his motion to correct illegal sentence. Watkins further asserted that because the trial court denied his motion to correct illegal ...


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