FERNANDEZ-TELLEZ V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 12-0221

Case Date: 06/06/2012

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2012
Opinion filed June 6, 2012. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D12-221 Lower Tribunal No. 05-29632A ________________

Damian Fernandez-Tellez,
Appellant, vs.

The State of Florida,
Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge. Damian Fernandez-Tellez, in proper person. Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge. PER CURIAM.

We affirm the trial court's order denying Appellant's motion, which sought an award of additional credit for time served. Although Appellant's motion was brought in the alternative under Florida Rules of Criminal Procedure 3.800(a) and Rule 3.850, Appellant is not entitled to relief under either provision. His claims are not properly brought under Rule 3.800(a), see Johnson v. State, 60 So. 3d 1045 (Fla. 2011); Crawford v. State, 77 So. 3d 807 (Fla. 3d DCA 2011), and are timebarred under Rule 3.850(b) (a motion for postconviction relief will not be considered if filed more than two years after the judgment and sentence become final, subject to exceptions for newly-discovered evidence, retroactive application of a fundamental constitutional right, or failure of retained counsel to file a timely postconviction motion).1 Affirmed.

Additionally, appellant's claim that he is entitled to credit for time served on house arrest is without merit. Perez v. State, 870 So. 2d 865 (Fla. 3d DCA 2004); Fernandez v. State, 627 So. 2d 1 (Fla. 3d DCA 1993). 2

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