       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          JEREMY MERCHANT,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-1861

                            [January 21, 2015]

   Petition for writ of mandamus to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara McCarthy, Judge; L.T. Case
No. 10017295CF10A.

   Michael R. Ohle of Ohle & Ohle, Fort Pierce, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J.
Carney, Senior Assistant Attorney General, West Palm Beach, for
appellee.

GERBER, J.

    The defendant appeals from the circuit court’s order denying his
motion for the court to direct the circuit court clerk to send a copy of his
correct sentence to the Florida Department of Corrections (“the
Department”). The defendant argues that his correct sentence indicates
that his sentence was to run concurrently with any active sentence
which he was serving, but that the copy of the sentence which the
Department received contains no such indication. Based on our review
of the record, we treat this appeal as a petition for writ of mandamus and
grant the petition. We remand for the circuit court to direct the clerk to
send to the Department a certified copy of the defendant’s correct
sentence indicating that his sentence was to run concurrently with any
active sentence which he was serving.

   The defendant entered a plea of no contest to the charge of possession
of a controlled substance. The circuit court sentenced the defendant to
52.3 months’ imprisonment, to run concurrently with any active
sentence which the defendant was serving. The court’s written sentence
indicated that disposition.

   When the defendant was committed to the Department for
classification, the Department informed him that the copy of the written
sentence which it received did not indicate that his sentence was to run
concurrently with any active sentence which he was serving, and thus
would be treated as a consecutive sentence.

   The defendant filed a motion requesting the circuit court to direct the
clerk to send to the Department a copy of his correct sentence indicating
that his sentence was to run concurrently with any active sentence
which he was serving.

  The circuit court entered an order denying the defendant’s motion.
The order states, in pertinent part:

      The defendant’s motion for order directing clerk is denied.
      The undersigned has mailed to defense counsel with this
      order        . . . the sentencing page which reflects that the
      defendant’s sentence runs concurrent with his other sentence.
      This sentence page was filed by the clerk at [the] time of
      sentencing . . . .

(emphasis added). By sending a copy of the correct sentence to the
defendant’s counsel, it appears that the court’s intent may have been to
have the defendant’s counsel send to the Department a copy of the
correct sentence. However, the Department would not accept a copy of
the correct sentence unless it came from the court.

   The defendant appealed. The defendant argues that the circuit court
erred in denying his motion because the court found that his sentence
was to run concurrently with any active sentence which he was serving,
and because the Department would not accept a copy of the correct
sentence unless it came from the court.

   In its answer brief, the state acknowledges that the court, in denying
the defendant’s motion, found that his sentence was to run concurrently
with any active sentence which he was serving.

   We treat this appeal as a petition for writ of mandamus. See Fla. R.
App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be
treated as if the proper remedy had been sought[.]”); Gilliam v. State, 996


                                    2
So. 2d 956, 957 (Fla. 2d DCA 2008) (treating the defendant’s motion for
execution of ministerial duties as a petition for writ of mandamus).

   We grant the petition. The circuit court, in denying the defendant’s
motion, found that his sentence was to run concurrently with any active
sentence which he was serving. Additionally, the certified copy of the
defendant’s sentence in the court file indicates that his sentence was to
run concurrently with any active sentence which he was serving.
However, the copy of the defendant’s sentence which the Department
received inexplicably does not indicate that his sentence was to run
concurrently with any active sentence which he was serving, and the
Department will not accept a copy of the correct sentence unless it comes
from the court.

   We remand      for the circuit court to direct the clerk to send to the
Department a       certified copy of the defendant’s correct sentence
indicating that    his sentence was to run concurrently with any active
sentence which    he was serving.

   Petition granted.

STEVENSON and CIKLIN, JJ., concur.

                            *        *        *

   Not final until disposition of timely filed motion for rehearing.




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