Marese v. State

906 So.2d 331 (2005) John MARESE, Petitioner, v. STATE of Florida, Respondent. No. 4D05-981. District Court of Appeal of Florida, Fourth District. July 6, 2005. Eric Schwartzreich of Carter, Schwartzreich & Yates, P.A., Fort Lauderdale, for petitioner. Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for respondent. PER CURIAM. Petitioner seeks certiorari review of an order denying his rule 3.800(c) motion to mitigate sentence. The trial court concluded it did not have jurisdiction because the hearing date was scheduled beyond the sixty day time limit. We conclude petitioner has adequately shown that he is not responsible for the hearing having been set beyond the sixty day limit, and grant the petition. The fifth district granted a petition under similar circumstances. Timmer v. State, 840 So.2d 1160 (Fla. 5th DCA 2003). See also Abreu v. State, 660 So.2d 703 (Fla.1995). We remand for the trial court to rule on the motion to mitigate. POLEN, KLEIN and TAYLOR, JJ., concur.