Nelson Bailey, Asst. Atty. Gen., West Palm Beach, Fla., for defendants-appellees.
Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
Opinion
PER CURIAM:
This appeal is taken from an order of the district court dismissing the civil rights complaint of a Florida state prisoner. We affirm.
Following his conviction upon trial by jury in state court on a three count indictment charging conspiracy, and sale and possession of marijuana, appellant was sentenced to 15 months on count one; to a consecutive term of five years on count two; and to a fine of five thousand dollars and concurrent term of five years on count three, unless the fine was not paid, in which case he was to serve a consecutive sentence of two and one-half years. Sentence was passed on April 21, 1970, but made to commence on May 20, 1969.
In his civil rights complaint filed below pursuant to 42 U.S.C. § 1983, appellant contended that the sentence under count three was improper under Williams v. Illinois, 1970, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586. Therefore, he claimed, the Governor of Florida and the Director of the Division of Corrections are confining him illegally and are liable to him in damages for each day he is confined on the illegal sentence. The district court dismissed the petition for failure to state a cause of action.