NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

ROBERTO DENIZARD, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-2727 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

___________________________________ ) 

Opinion filed January 30, 2015. 

Appeal pursuant to Fla. R. App. P. 

9.141(b)(2) from the Circuit Court for 

Hillsborough County; Michelle Sisco, 

Judge. 

Dane K. Chase of Chase Law Florida, 

P.A., St. Petersburg, for Appellant. 

VILLANTI, Judge. 

Roberto Denizard appeals the summary denial of his motion for 

postconviction relief filed under Florida Rule of Criminal Procedure 3.850, which the 

postconviction court found was untimely. Because the motion was, in fact, timely filed, 

we reverse and remand for the postconviction court to consider the motion on its merits. 
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In 2008, Denizard entered open guilty pleas in six cases with multiple 

counts, and he was sentenced to a total of forty years' imprisonment. After a grant of 

belated appeal of his judgments and sentences, this court affirmed the convictions in all 

cases, reversed in part the sentences for count one in circuit court case no. 07-15301 

and counts one and two in circuit court case no. 07-14640, and remanded with 

directions to the trial court to correct the sentences and written judgments as outlined in 

the opinion. Denizard v. State, 79 So. 3d 159, 162 (Fla. 2d DCA 2012) (Denizard I). 

While mandate issued on February 27, 2012, Denizard was not actually resentenced 

until May 14, 2013. He did not appeal this sentence. 

On April 22, 2014, Denizard filed his current motion, raising a facially 

sufficient claim of ineffective assistance of counsel. See Alcorn v. State, 121 So. 3d 

419, 432 (Fla. 2013). However, the postconviction court denied the motion as untimely, 

finding that Denizard had two years after the February 27, 2012, mandate in which to 

file his postconviction motion. The postconviction court incorrectly concluded that 

Denizard's resentencing occurred as a result of a successful rule 3.800(b) motion, that 

the two-year timeframe in which to appeal was therefore not tolled, and that the trial 

court's actions after the issuance of the appellate mandate did not extend the direct 

review proceedings. 

We noted in our prior opinion that Denizard appealed his sentence after 

the trial court denied his rule 3.800(b) motion, see Denizard I, 79 So. 3d at 160, but this 

observation does not, and could not, mean that his direct appeal was transformed into 

an appeal from a collateral proceeding. Rule 3.800(b) serves as a procedural device for 

preserving sentencing errors for review on direct appeal. See Brannon v. State, 850 
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So. 2d 452, 456 (Fla. 2003). Under the rule, a defendant may file "a 'motion to correct 

any sentencing error, including an illegal sentence' before filing an appeal or, when an 

appeal is pending, before the first brief is filed." Jackson v. State, 983 So. 2d 562, 569 

(Fla. 2008) (quoting rule 3.800(b)). Unlike a ruling on a motion filed under rule 3.800(a), 

a ruling on a motion filed under rule 3.800(b) does not provide an independent basis for 

appeal. Rather, rule 3.800(b) solely provides a basis for preserving alleged sentencing 

errors for purposes of a direct appeal. Hence, the timeliness of any subsequent 

postconviction motion is calculated from the resolution of the mandate resulting from the 

direct appeal—not from the resolution of the rule 3.800(b) motion itself. 

In this case, Denizard properly used rule 3.800(b) to preserve the 

sentencing errors made at his original sentencing for purposes of his direct appeal. And 

in resolving this direct appeal, this court reversed portions of Denizard's sentences in 

two of his cases and remanded with directions to the trial court to make the corrections 

as outlined in the opinion. On remand, Denizard was resentenced on May 14, 2013, in 

accordance with our mandate. Thus, his judgment and sentence became final when the 

thirty-day period for the filing of a direct appeal of the resentencing expired. See Gisi v. 

State, 135 So. 3d 493, 495 (Fla. 2d DCA 2014) ("Gisi was resentenced on May 5, 2010. 

Because he did not appeal the new sentence, it became final—and the clock under rule 

3.850 began to run—when the thirty-day period for filing an appeal expired."); Skeens v. 

State, 853 So. 2d 494, 495 (Fla. 2d DCA 2003) ("For Skeens, since his conviction was 

affirmed by his initial direct appeal (Skeens I) and he did not appeal the sentence 

imposed after his second direct appeal (Skeens II), the direct appeal process ended and 
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his judgment and sentence became final on December 13, 2000, when the time expired 

for the filing of a direct appeal from his second resentencing."). 

Accordingly, Denizard's motion was timely filed because the two-year time 

limit of rule 3.850 does not expire for him until June 14, 2015. See Fla. R. Crim. P. 

3.850(b). We therefore reverse the summary denial of Denizard's facially sufficient 

motion as untimely and remand the case to the postconviction court to consider the 

motion on its merits. 

Reversed and remanded. 

NORTHCUTT and CASANUEVA, JJ., Concur.