JOSEPH M. BERTONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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No appeal lies from the denial of a motion for mitigation of sentence pursuant to Rule 3.800 Fla.R.Crim.P., and the trial court did not err in ordering sentences to run consecutively.
Bertone appealed the denial of his motion for mitigation of sentence. He argued that his sentence for attempted second-degree murder could not run con…
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PER CURIAM.
Bertone appeals the denial of his motion for rehearing for mitigation of sentence pursuant to Rule 3.800 Fla.R.Crim.P. We note that no appeal lies from the denial of a motion for reduction of a legal sentence filed pursuant to Fla.R.Crim.P. 3.800. Hallman v. State, 371 So. 2d 482 (Fla.1979), affirming 343 So. 2d 912 (Fla.2d DCA 1977); Suggs v. State, 358 So. 2d 897 (Fla.2d DCA 1978).
Although his appeal is filed pursuant to Rule 3.800 Fla.R.Crim.P., Bertone’s argument is more closely akin to an appeal of a denial of a motion for post conviction relief pursuant to Rule 3.850 Fla.R.Crim.P. Even if he had used this means of appeal, we would affirm the denial of his Rule 3.850 Motion for Post Conviction Relief.
He argues that since he was on parole for a prior rape conviction, his subsequent sentence for attempted second degree murder could not be made to run consecutively to the sentence for rape. He cites Distillator v. Civiletti, 612 F. 2d 194 (5th Cir. 1980) for the proposition that a sentence cannot be stacked to a parole that has not been executed or violated. We note that Distillator construed a federal law pertaining to the execution of parole violation warrants and is inapplicable to the instant proceedings under Florida law.
Tereul v. Wainwright, 328 So. 2d 199 (Fla. 1976) and Holley v. Wainwright, 326 So. 2d 411 (Fla.1976) have construed Florida Statutes to mandate that a second sentence, entered in regard to a different information or indictment; shall run consecutively to a prior sentence unless the trial judge specifically orders the sentence to run concurrently. In this case, the trial judge specifically ordered the sentences to run consecutively. We find no error. Therefore, the appeal is dismissed.
WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985)…s. We note at the outset that Smith has attempted to appeal from a nonap-pealable order — the denial of a motion for reduction of sentence. Hallman v. State, 371 So. 2d 482 (Fla.1979), affirming 343 So. 2d 912 (Fla. 2d DCA 1977); Bertone v. State, 388 So. 2d 347 (Fla. 1st DCA 1980); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980); Suggs v. State, 358 So. 2d 897 (Fla. 2d DCA 1978). We can and do, however, treat this appeal as a petition for writ of certiorari. Generally, a court has no jurisdiction to…
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Marsh v. State, 497 So. 2d 954 (Fla. 1st DCA 1986)…ng that appellant has no right to a direct appeal of a trial court’s denial of a rule 3.800 motion for reduction or modification of sentence. Hallman v. State, 371 So. 2d 482 (Fla.1979), affirming 343 So. 2d 912 (Fla. 2d DCA 1977); Bertone v. State, 388 So. 2d 347 (Fla. 1st DCA 1980); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980); and Suggs v. State, 358 So. 2d 897 (Fla. 2d DCA 1978). While the state is correct that the trial court’s discretionary ruling under rule 3.800(b) on whether to modify or re [*…
Authorities Cited
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Hallman v. State, 343 So. 2d 912 (Fla. 2d DCA 1977)
- Bowen v. State, 328 So. 2d 199 (Fla. 1976)
- Suggs v. State, 358 So. 2d 897 (Fla. 2d DCA 1978)
- THE Florida BAR v. Lewis, 358 So. 2d 897 (Fla. 1st DCA 1978)
- Distillator v. Civiletti, 612 F.2d 194 (5th Cir. 1980)
- Holley v. Louie L. Wainwright, 326 So. 2d 411 (Fla. 1975)