5D07-2092 Louis Grieco v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2092

Case Date: 08/27/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

LOUIS M. GRIECO, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed August 31, 2007 3.800 Appeal from the Circuit Court for Marion County, Brian D. Lambert, Judge. Louis M. Grieco, Ocala, pro se. No Appearance for Appellee. Case No. 5D07-2092

PER CURIAM. The appellant filed an appeal seeking relief which cannot be appropriately granted by this court. First, we note that an order denying a rule 3.800(c) motion to mitigate sentence is not appealable. See Adams v. State , 800 So. 2d 741 (Fla. 5th DCA 2001). Next, as to the gain time issue, the appellant failed to show that he

exhausted his administrative remedies. The proper procedure for seeking this relief is to file a petition for writ of mandamus in the circuit court to review final action by the DOC relating to gain time claims. See Sheley v. Fla. Parole Comm'n , 720 So. 2d 216

(Fla. 1998); Gaynor v. State , 831 So. 2d 1246 (Fla. 5th DCA 2002) (gain time claim cannot be raised in 3.800(a) motion). Accordingly, we dismiss the appeal. DISMISSED.

PLEUS, MONACO and TORPY, JJ., concur.

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