Behrens v. Woodson

WRIT OF HABEAS CORPUS DAUKSCH, Chief Judge. This is before us upon a petition for “Writ of Mandamus and/or Habeas Corpus.” Petitioner seeks relief from an allegedly illegal sentence violative of the rule in Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), revised, 396 So.2d 1107 (Fla.1981). Although petitioner seems to have grounds for relief we shall allow the circuit court to first consider the matter. Massey v. State, 389 So.2d 712 (Fla. 2d DCA 1980); Sanders v. State, 386 So.2d 256 (Fla. 5th DCA 1980); Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979). Compare Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). Possibly some sort of petition has been filed in the circuit court but we have no record of an order concerning the Villery sentence so we presume the court has not ruled upon the matter. We deny the petition without prejudice to petitioner to apply to the circuit court under Florida Rule of Criminal Procedure 3.850 and if not properly afforded relief then to seek relief here through a timely filed notice of appeal. PETITION DENIED. ORFINGER and COWART, JJ., concur.