Mincey v. State, No. 97-3028

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation703 So.2d 1194
Parties23 Fla. L. Weekly D99 Ronald Roosevelt MINCEY, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 97-3028
Decision Date24 December 1997

Page 1194

703 So.2d 1194
23 Fla. L. Weekly D99
Ronald Roosevelt MINCEY, Appellant,
v.
STATE of Florida, Appellee.
No. 97-3028.
District Court of Appeal of Florida,
Fourth District.
Dec. 24, 1997.

Cynthia Grooms Marvin, Stuart, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

More than two years after being sentenced, appellant filed a motion to correct

Page 1195

sentence under rule 3.800 on the ground that his sentence is illegal because it was ordered to be consecutive to another yet-to-be imposed sentence for violating conditional release. He relies on our decision in Lyons v. State, 672 So.2d 654 (Fla. 4th DCA 1996), holding that where a sentence starts to run at the expiration of another sentence, the record must reflect the terms of the other sentence. We came to that conclusion in Lyons because of Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); however, we note that the first district disagrees with Lyons and has certified conflict. Scantling v. State, 704 So.2d 565 (Fla. 1st DCA 1997).

Unlike Lyons, this is not a direct appeal, but rather a motion filed pursuant to rule 3.800, the only avenue of relief open to appellant at this point. Because the sentence does not exceed the maximum period set forth by law for the offense, we conclude that this sentence, although improper under Lyons, is not an illegal sentence under Davis v. State, 661 So.2d 1193 (Fla.1995) and therefore cannot be raised in a 3.800 motion. We therefore affirm.

DELL, KLEIN and GROSS, JJ., concur.

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