WALTER DELLAHOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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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.
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Cited By (22 total)
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Dellofano v. State, 946 So. 2d 127 (Fla. 5th DCA 2007)…ly ordered day-for-day credit for all prior prison time, rather than simply ordering the Department of Corrections to credit him with his prior prison time). As such, Dellofano has stated a valid claim for relief under rule 3.850. Dellahoy v. State, 816 So. 2d 1253 (Fla. 5th DCA 2002). Because the trial court’s order fails to refute Dellofano’s sworn allegations, I agree with the majority that reversal is required.…1 / 2
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State v. Nashawn P. Jackson, 842 So. 2d 1040 (Fla. 3d DCA 2003)…cause the forfeiture of the Defendant’s gain time by the Department of Corrections thwarted the intent of the negotiated plea agreement. See Williams v. Department of Corrections, 734 So. 2d 1132, 1133 (Fla. 3d DCA 1999); see also Dellahoy v. State, 816 So. 2d 1253 (Fla. 5th DCA 2002); Wallace v. State, 793 So. 2d 78 (Fla. 2d DCA 2001). Although there may be a suggestion inherent in the trial court’s Order that the trial court had the authority to countermand the Department of Corrections’ forfeiture of gain t…
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Hunt v. State, 922 So. 2d 452 (Fla. 4th DCA 2006)…able claim of entitlement to enforcement of his plea agreement. See Garvin v. State, 884 So. 2d 470 (Fla. 4th DCA 2004); State v. Jackson, 842 So. 2d 1040 (Fla. 3d DCA 2003); Williamson v. State, 841 So. 2d 694 (Fla. 2d DCA 2003); Dellahoy v. State, 816 So. 2d 1253 (Fla. 5th DCA 2002). We therefore reverse and remand for an evidentiary hearing or attachment of portions of the trial court records refuting appellant’s claim of entitlement to enforcement of his plea agreement. GUNTHER, POLEN and TAYLOR, JJ.,…
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- Williams v. The Dep't OF Corr., 734 So. 2d 1132 (Fla. 3d DCA 1999)
- Wallace v. State, 793 So. 2d 78 (Fla. 2d DCA 2001)
- Jones v. State, 782 So. 2d 552 (Fla. 5th DCA 2001)