       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 27, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-1316
                          Lower Tribunal No. 14-21872
                              ________________


                               Clineford Jeune,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.



     A Writ of Certiorari to the Circuit Court for Miami-Dade County, Dennis J.
Murphy, Judge.

      Clineford Jeune, in proper person.

      Pamela Jo Bondi, Attorney General, for respondent.


Before SUAREZ, C.J., and ROTHENBERG, and FERNANDEZ, JJ.

      FERNANDEZ, J.
      Clineford Jeune appeals the trial court’s order denying his motion to

mitigate sentence as untimely. An order denying a motion to mitigate sentence is

not an appealable order; however, we treat the notice of appeal as a petition for a

writ of certiorari and grant the petition because the trial court incorrectly

determined that the motion was untimely. See Diaz v. State, 931 So. 2d 1002 (Fla.

3d DCA 2006).

      On November 5, 2015, Jeune was sentenced to five years in state prison on a

probation violation. The sentence was appealed and a mandate affirming was

entered on April 12, 2016. Florida Rule of Criminal Procedure 3.800(c) permits

the filing of a motion to mitigate sentence and requires that the motion be filed

within sixty days of the entry of the sentence, or within sixty days from the date

that the sentence becomes final by the issuance of an appellate mandate. Jeune

filed his motion on April 24, 2016; therefore, his motion is timely and he was

entitled to consideration of the motion on the merits.

      Order quashed and cause remanded.




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