Lori v. State

PER CURIAM. Appellant, Daniel S. Lori, appeals from a judgment and sentence entered against him on October 23, 1985. Because the notice of appeal in this case was not filed until January 2, 1986, we dismiss the appeal as untimely. Fla.R.App.P. 9.140(b)(2). The record on appeal also contains an order summarily denying appellant’s motion for mitigation and reduction of sentence. Although appellant’s notice of appeal was filed within thirty days of this order, an order denying mitigation is not appealable. Hallman v. State, 343 So.2d 912 (Fla. 2d DCA 1977), aff'd, 371 So.2d 482 (Fla.1979); Parker v. State, 214 So.2d 632 (Fla. 2d DCA 1968). We, therefore, may not consider the merits of appellant’s motion, but we note that the motion contains allegations concerning the volun-tariness of appellant’s plea. Such allegations may be raised in a motion for post-conviction relief if filed on or before two years after the judgment and sentence become final. Fla.R.Crim.P. 3.850. We, therefore, dismiss this appeal without prejudice to appellant filing a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. AFFIRMED. GRIMES, A.C.J., and SCHOONOVER and HALL, JJ., concur.