Hunt v. State , 798 So. 2d 788 ( 2001 )

798 So. 2d 788 (2001)

Alfred J. HUNT, Appellant,
v.
STATE of Florida, Appellee.

No. 4D01-1472.

District Court of Appeal of Florida, Fourth District.

October 10, 2001.

Alfred J. Hunt, Jasper, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Alfred Hunt complains that the Department of Correction has not awarded him the credit for time served that he is entitled to under his plea agreement. He made this claim in an earlier postconviction motion, the denial of which we affirmed without prejudice to his pursuing the appropriate administrative remedy with the Department of Corrections. Hunt v. State, 775 So. 2d 1000 (Fla. 4th DCA 2000).

After his administrative grievance was denied, Hunt filed a second motion under Florida Rule of Criminal Procedure 3.850. The proper remedy would have been a petition for writ of mandamus filed in the circuit court where Hunt is incarcerated. See Burks v. State, 789 So. 2d 430 (Fla. 4th DCA 2001). The trial court summarily denied that motion, and Hunt brought this appeal.

We affirm the denial of the second motion without prejudice to Hunt to file a petition for writ of mandamus in the circuit court with territorial jurisdiction over the prison where he is incarcerated. We note that because the proper remedy was appellate in nature, the circuit court would have had authority under Florida Rule of Appellate Procedure 9.040 to treat the motion as a petition for writ of mandamus and to transfer it to the appropriate circuit court.

POLEN, C.J., FARMER and TAYLOR, JJ., concur.