Millard v. StateMillard v. State
No appearance for appellee.
MILLS, Judge.
This is a timely appeal from an order granting in part Millard‘s motion for post-conviction relief sought pursuant to
Pursuant to a plea of nolo contendere, Millard was found guilty of escape in violation of
Thereafter, on 20 May 1986 Millard filed a motion for post-conviction relief asserting that (1) his sentence was illegal as it represented a departure from the sentence recommended under the guidelines and no written reasons had been provided in justification of the departure, and (2) he should not have been ordered to pay $200 in court costs under
On 28 May 1986, the trial court entered an order denying relief as to the first asserted error and directing the state attorney to respond to Millard‘s second claim. The State filed an answer on 9 June 1986. Following this, a second order was entered on 25 June 1986. In this order, the trial court relying on Noland v. State, 489 So.2d 873 (Fla. 1st DCA 1986), directed Millard to complete 60 hours of community service in lieu of the $200 court costs imposed at the time of his sentencing. This was the relief requested by Millard in his motion. This timely appeal then followed.
We would first note that this case presents the court with an unusual procedural situation in that two separate orders were rendered addressing Millard‘s Rule 3.850 motion. The first order denied the claim made under the first point urged on appeal. The second order granted the relief requested by Millard concerning the imposition of community service in lieu of court costs. No direct appeal was taken from the first order; therefore, it can be argued that this court is without jurisdiction to address the first issue herein presented. However, it could also be validly argued that the first order was of an interlocutory nature and, consequently, an appeal could not be properly taken until the second order was issued.
Without reaching this question, we affirm on the first point raised. Millard is obviously unaware that
The Committee Note to
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.
Millard was convicted of a second degree felony. The maximum sentence authorized by law for such an offense is 15 years. The total sanction Millard received in this case was 15 years; therefore, it can be seen his sentence is within the guidelines and no error has been demonstrated.
Under the second point on appeal, Millard asks this court to notify the Department of Corrections of his eligibility for gain time and to direct the department to correct his commitment papers accordingly. In other words, Millard wants his motion to be treated as a petition for a writ
Rule 33-3.07, Fla. Admin. Code, dictates a two-step review process within the Department of Corrections, prior to judicial review. Morris v. Wainwright, supra. In Curry v. Wainwright, 422 So.2d 1029 (Fla. 1st DCA 1982), this court specifically held that a prison inmate had not established his right to have statutory gain time calculated under a certain statute where he had not shown he had exhausted his administrative remedies. Accordingly, we affirm on this issue without prejudice to Millard‘s right to seek relief through the inmate grievance procedure provided in Rule 33-3.07, Fla. Admin. Code.
AFFIRMED.
BOOTH, C.J., and THOMPSON, J., concur.