Irrizary v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ANTONIO IRRIZARY, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Case No. 2D09-5190 Opinion filed February 26, 2010. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge. SILBERMAN, Judge. We reverse the circuit court's order of October 8, 2009, which dismissed Antonio Irrizary's motion filed on September 8, 2009, pursuant to Florida Rule of Criminal Procedure 3.800(a) for lack of jurisdiction. When it dismissed Mr. Irrizary's motion, the circuit court was under the impression that the prior denial of a rule 3.800(a) motion raising related issues was pending on appeal. However, Mr. Irrizary had voluntarily dismissed that appeal, 2D09-3733, on September 9, 2009, approximately one month prior to rendition of the dismissal order in this case. Because the circuit court did have jurisdiction, we reverse and remand for the court to consider the merits of the motion filed on September 8, 2009. VILLANTI and MORRIS, JJ., Concur. -2-

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