Summary
In Wahl v. State, 460 So.2d 579 (Fla. 2d DCA 1984), the Second District Court of Appeal held that a departure from the sentencing guidelines may not be raised in a motion for post-conviction relief. The court reasoned that since the sentencing error complained of was not of fundamental dimension and could have been raised by way of appeal, it could not be asserted in a motion for post-conviction relief.
Summary of this case from Chaplin v. StateOpinion
No. 84-2013.
December 19, 1984.
Appeal from the Circuit Court, Manatee County, Paul E. Logan, J.
This is an appeal from the denial of a motion for post-conviction relief. As one of his grounds, appellant contends that in sentencing him under the guidelines, the court improperly departed from the presumptive range. We hold that this issue cannot be raised in a motion for post-conviction relief.
Section 921.001(5), Florida Statutes (1983), provides for appellate review of any sentence imposed outside the guidelines. If appellant had a complaint concerning the court's departure from the guidelines, he should have filed a direct appeal from the sentence. That portion of Florida Rule of Criminal Procedure 3.850 which authorizes the review of sentences "in excess of the maximum authorized by law," refers to a sentence which is above the legislative maximum for the prescribed crime. Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979). Since appellant complains of an error which is not of fundamental dimension and which could have been raised by way of appeal, it cannot now be asserted in a motion for post-conviction relief.
The other grounds of appellant's motion have no merit. Therefore, the order of denial is affirmed.
RYDER, C.J., and CAMPBELL, J., concur.