Noble v. State , 338 So. 2d 904 ( 1976 )

338 So. 2d 904 (1976)

Dewayne Frank NOBLE, III, Appellant,
v.
STATE of Florida, Appellee.

No. CC-256.

District Court of Appeal of Florida, First District.

November 2, 1976.

Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.

McCORD, Judge.

Appellant was convicted of larceny of an automobile and was given a five year split sentence, under § 948.01(4), Fla. Stat. (1975). The trial court ordered,

"After you have served three (3) years of said term, with no credit for good time or gain time the remainder of said sentence shall be stayed and withheld and you shall be placed on probation for a period of two (2) years under the supervision of the Florida Parole and Probation Commission."

The notice of appeal filed by appellant recites that he appeals "the judgment and conviction." Appellant's brief raises no question regarding his judgment and conviction. The only question raised is whether or not the court erred in directing that appellant serve the first three years of his split sentence with no credit for gain time or good time. Furthermore, the record does not show that this question was ever raised in the trial court.

The "judgment and conviction" are affirmed without prejudice of appellant to test the legality of the sentence by filing in the trial court a motion under Fla.R.Crim.P. 3.850.

RAWLS, Acting C.J., and SMITH, J., concur.