NAPOLITANO V. STATE
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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 ** ROCCO NAPOLITANO, ** Petitioner, ** vs. CASE NO. 3D04-318 ** THE STATE OF FLORIDA, ** Respondent. LOWER TRIBUNAL CASE NO. 95-39229 ** Opinion filed July 14, 2004. A case of original jurisdiction Mandamus. Rocco Napolitano, in proper person. Sheron Wells, Assistant General Counsel, Corrections (Tallahassee), for respondent. Department of Before FLETCHER, RAMIREZ, and SHEPHERD, JJ. ON MOTION FOR REHEARING DENIED FLETCHER, Judge. Rocco Napolitano seeks rehearing of this court s denial of his petition for mandamus to compel the trial court to direct Napolitano be transferred to serve the remainder of his state sentence in federal custody. We deny rehearing. Napolitano was not under federal charges and not subject to a federal sentence at the time of his state plea and sentencing. Napolitano federal was court Furthermore, therefore system even if not or within the the jurisdiction Federal Napolitano was Bureau subject of to of the Prisons. a federal sentence, the state court is without authority to order that he concurrently serve his state sentence in federal custody. See Doyle v. State, 615 So. 2d 278 (Fla. 3d DCA), rev. denied, 629 So. 2d 132 (Fla. 1993), cert. denied, 511 U.S. 1007, 114 S. Ct. 1376, 128 Corrections L. has Ed. 2d been 52 given (1994)(because authority the regarding Department of placement of state prisoners, the trial court does not have the authority to order that a Florida sentence be another jurisdiction s sentence.) recommendation only. served concurrently with Such an order is deemed a Davis v. State, 852 So. 2d 355, 357 (Fla. 5th DCA 2003)( [a]n order providing that a state sentence is to be served concurrently with a federal sentence is really only a recommendation. ). sentence to serve, Here, Napolitano did not even have a federal and was witness to a federal offense. in federal custody merely as a Nevertheless, it was agreed by all parties at Napolitano s plea hearing that the sentencing court would issue a recommendation that Napolitano serve his time in a federal facility. Napolitano is also This the court did. not entitled to relief pursuant Taylor v. State, 710 So. 2d 636 (Fla. 3d DCA 1998). to Unlike Napolitano, the defendant in Taylor was subject to a federal sentence as well as a state sentence; concurrent service of those sentences in a federal prison was made a condition of his plea, which condition was violated by the state. Under those circumstances, specific performance permission withdraw the Here, to Napolitano is not plea subject of was to the an a plea bargain appropriate federal or remedy. sentence; the parties requested, and the court made, a recommendation only; and the trial recommendation. court had no legal authority to enforce the Napolitano is therefore not entitled to the relief he seeks. Rehearing denied.
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