Roauer v. State

697 So.2d 1303 (1997) William P. ROAUER, Appellant, v. STATE of Florida, Appellee. No. 97-03316. District Court of Appeal of Florida, Second District. August 20, 1997. *1304 PER CURIAM. William P. Roauer appeals the denial of his motion to mitigate sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c).[1] The trial court denied the motion as untimely and informed Mr. Roauer that he had thirty days to appeal its ruling to this court. The trial court erred in both rulings. A motion for reduction or modification of sentence is not appealable, although it can occasionally be reviewed under common law certiorari. See Moya v. State, 668 So.2d 279 (Fla. 2d DCA 1996); Smith v. State, 471 So.2d 1347 (Fla. 2d DCA 1985). Mr. Roauer's motion was not untimely because it was filed within sixty days of the issuance of mandate by this court in his direct appeal. See Fla. R.Crim. P. 3.800(c). Accordingly, we treat the appeal as a petition for certiorari and grant the petition. The trial court's order is quashed, and the case is remanded for proper consideration of the motion to modify sentence. DANAHY, A.C.J., and ALTENBERND and BLUE, JJ., concur. NOTES [1] Mr. Roauer designated the motion as filed pursuant to Florida Rule of Criminal Procedure 3.800(b), which was the correct designation until January 1, 1997. It is clear from the substance of the motion that it seeks discretionary reduction of the sentence within the sixty-day period permitted by old rule 3.800(b), now rule 3.800(c).