Opinion
Case No. 3D03-2172.
Opinion filed April 14, 2004.
An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge, Lower Tribunal No. 00-12901A.
Daniel Ricardo Salazar, in proper person.
Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
Before COPE, GODERICH and GREEN, JJ.
Daniel Ricardo Salazar appeals an order denying his motion to define or clarify sentence, which we treat as a motion to correct illegal sentence. We affirm in part and reverse in part.
The State concedes that there is a sentencing error on count two. The sentence imposed was ten years with a mandatory minimum term of three years. The ten-year sentence exceeds the legal maximum, and must be reduced to five years. See § 784.021(1)(a), (2), Fla. Stat. (1999).
The State also acknowledges that count four, unlawful possession of a firearm while engaged in a criminal offense,id. § 790.07(2), is subsumed within count one, aggravated battery with a firearm. Thus, the conviction and sentence on count four must be vacated. See Grene v. State, 702 So.2d 510, 511-12 (Fla. 3d DCA 1997) (en banc).
As to the foregoing two issues, we remand for correction of the judgment and sentencing orders. Defendant-appellant Salazar need not be present.
The defendant next contends that he has not been granted twenty days of post-sentencing credit. The defendant states that twenty days elapsed between the date of his sentencing in Miami-Dade County Circuit Court and the date he arrived at the Florida Department of Corrections. By statute, the county jail is required to deliver a certificate to the Department of Corrections certifying the date sentence was imposed, the date the prisoner was delivered to the Department, and the post-sentencing dates the defendant was at liberty, if any. See § 921.161, Fla. Stat. (1999).
If an inmate believes that the Department has not granted correct credit in accordance with the section 921.161 jail certificate, then the inmate must seek relief through the inmate grievance procedure. Lucio v. State, 673 So.2d 195 (Fla. 3d DCA 1996); Barber v. State, 661 So.2d 355, 356 (Fla. 3d DCA 1995).
After exhausting available remedies through the inmate grievance procedure, if the inmate believes that the Department's ruling was incorrect, the inmate may then file a petition for writ of mandamus directed to the Department of Corrections.Barber, 661 So.2d at 356. Venue for such a proceeding is in the Circuit Court for the Second Judicial Circuit, in Tallahassee, Leon County, Florida. Id. at 356 n. 2. We therefore affirm the trial court's order denying relief on this point, without prejudice to the defendant to avail himself of the remedies outlined in Barber.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.