Bailey v. State

475 So. 2d 296, 10 Fla. L. Weekly 2139, 1985 Fla. App. LEXIS 15825

• Court: District Court of Appeal of Florida
• Decided: September 13, 1985
• Docket: No. 85-1233
• Status: Published

Opinion

SCHEB, Judge.

The defendant, Lawrence Bailey, was sentenced to fifteen years for robbery and time served for child abuse. The trial court denied his motion for post conviction relief. In urging reversal of that decision, the defendant now asserts two grounds for relief before this court. First, he states that the trial judge erred in considering certain factors as reasons for departure from the sentencing guidelines. Second, he argues that he was denied effective assistance of counsel on appeal.

Under this court’s ruling in Wahl v. State, 460 So.2d 579 (Fla. 2d DCA 1984), the issue of whether the trial court improperly departed from the presumptive range of the sentencing guidelines cannot be raised on a Rule 3.850 motion. Since the fifteen-year sentence for robbery is not “in excess of the maximum authorized by law,” defendant’s complaint should have been raised on direct appeal. Id. at 580; Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979).

As to defendant’s allegation of ineffective appellate counsel, the proper method for raising this issue is by writ of habe-as corpus to the appellate court which considered the direct appeal. White v. State, 456 So.2d 1302 (Fla. 2d DCA 1984); Irby v. State, 454 So.2d 757 (Fla. 1st DCA 1984). Affirmed.

RYDER, A.C.J., and DANAHY, J., concur.