Wahl v. State , 460 So. 2d 579 ( 1984 )

460 So. 2d 579 (1984)

Peter G. WAHL, Appellant,
v.
STATE of Florida, Appellee.

No. 84-2013.

District Court of Appeal of Florida, Second District.

December 19, 1984.

GRIMES, Judge.

This is an appeal from the denial of a motion for post-conviction relief. As one of his grounds, appellant contends that in sentencing him under the guidelines, the court improperly departed from the presumptive range. We hold that this issue cannot be raised in a motion for post-conviction relief.

Section 921.001(5), Florida Statutes (1983), provides for appellate review of any sentence imposed outside the guidelines. If appellant had a complaint concerning the court's departure from the guidelines, he should have filed a direct appeal from the sentence. That portion of Florida Rule of Criminal Procedure 3.850 which authorizes the review of sentences "in excess of the maximum authorized by law," refers to a sentence which is above the legislative maximum for the prescribed crime. Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979). Since appellant complains of an error which is not of fundamental dimension and which could have been raised by way of appeal, it cannot now be asserted in a motion for post-conviction relief.

The other grounds of appellant's motion have no merit. Therefore, the order of denial is affirmed.

RYDER, C.J., and CAMPBELL, J., concur.