ORDER

MAURICE M. PAUL, Senior District Judge.

This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation dated December 28, 2015. (Doc. 17). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). The time for filing objections has passed, and none have been filed.

Having considered the Report and Recommendation, I have determined that the Report and Recommendation should be adopted. The petitioner in this case pled guilty to three counts of lewd and lascivious behavior with his 7-year-old step-daughter. Originally, he was sentenced to 25 years imprisonment and 15 years probation on Count V and 15 years each on Counts III and IV, with all of the sentences to run concurrently.1 Doc. 11, ECF attach. #2, PDF pp. 61-63. The counts containing more serious penalties, I, II, VI and VII, were nolle prossed as part of the plea deal.

After he was sentenced, petitioner appealed and also attacked his conviction and sentence in various state post-conviction proceedings. In one ground, he argued that Count V's total sentence of 25 years imprisonment plus 15 years probation was illegal because the maximum for the crime charged was 30 years total at the time of his offense. The trial court rejected this argument and he eventually appealed. In the meantime, he filed this habeas petition. After the federal petition proceeded for a while, the results of his latest state appeal came back, and he had won part of his appeal. See Alachua County Circuit Court Case No. 2005-CF-005332. The DCA remanded the case for resentencing, and such sentencing was held on December 11, 2015. Id. He was resentenced on Count V to 25 years imprisonment and only 5 years probation. Id. The sentences on the other two counts were not affected. Id. He then filed a notice of appeal on December 15, 2015, and that appeal is still pending. Id. The Magistrate Judge issued a show cause order on December 8, 2015, asking the parties to show cause why the federal petition should not be dismissed due to the fact that the state judgment is not yet final. Doc. 14. The government responded in Doc. 16 by saying it could offer no such cause.

Inadvertently, the order to show cause directed the clerk to mail petitioner the order at the Alachua County Jail, despite the fact that the last address given by the petitioner was for the Blackwater River Correctional Facility, in Doc. 13. When the time to show cause expired with no response from petitioner, the Magistrate Judge issued an Report and Recommendation, Doc. 17, that the case be dismissed because the state judgment was not final. The next day, petitioner's copy of the order to show cause was returned as undeliverable. Doc. 18. The Report and Recommendation itself, however, was mailed to the Blackwater River CF on December 28, 2015, and was not returned as undeliverable. The Court interprets this to mean that petitioner received it, had a chance to file objections, but simply chose not to.

The Court agrees with the Magistrate Judge that the state judgment is not yet final and that the federal petition cannot proceed until it is. Accordingly, it is hereby

ORDERED AND ADJUDGED:

DONE AND ORDERED.