Dellahoy v. State

816 So. 2d 1253 (2002)

Walter DELLAHOY, Appellant,
v.
STATE of Florida, Appellee.

No. 5D01-3354.

District Court of Appeal of Florida, Fifth District.

May 31, 2002.

Walter Dellahoy, Bowling Green, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente and Lamya A. Henry, Assistant Attorney Generals, Daytona Beach, for Appellee.

PETERSON, J.

Walter Dellahoy appeals the summary denial of his motion under Rule 3.850, Florida Rules of Criminal Procedure. Dellahoy's motion alleged that he agreed to and was sentenced by the trial court to a period of 125 months with credit for 96 months. Subsequently, however, the Department of Corrections (DOC) advised Dellahoy that 1098 days of gain time had been forfeited and he would have to serve approximately 3 years more than the 29 months called for by the agreement.

We vacate the trial court's denial of Dellahoy's motion and remand to either resentence him in a manner that effectuates the plea agreement after considering the DOC forfeiture of gain time or allow him to withdraw his plea. The DOC's forfeiture of the gain time cannot be countermanded by the court, but neither can that forfeiture thwart the plea bargain. E.g., Jones v. State, 782 So. 2d 552 (Fla. 5th DCA 2001); see also Wallace v. State, 793 So. 2d 78 (Fla. 2d DCA 2001); Williams v. Dep't of Corrections, 734 So. 2d 1132 (Fla. 3d DCA 1999).

ORDER VACATED; REMANDED.

GRIFFIN and ORFINGER, R.B., J.J., concur.