La-Casse v. State

684 So. 2d 220, 1996 Fla. App. LEXIS 12240, 1996 WL 670052

• Court: District Court of Appeal of Florida
• Decided: November 20, 1996
• Docket: No. 96-3461
• Status: Published

Opinion

PER CURIAM.

The appellant sought post-conviction relief on his allegation that the Department of Corrections had improperly applied rule 33-11.0065, Florida Rules of Administrative Procedure (1996) to Ms 1991 conviction, resulting in the loss of his ability to earn or accrue incentive gain time. Shortly after the appellant’s motion was denied, the Florida Supreme Court declared that the retroactive application of that rule violated the constitutional prohibition against ex post facto laws. Gwong v. Singletary, 683 So.2d 109 (Fla. 1996).

The circuit court’s denial must be affirmed because the appellant’s allegations are not a proper subject for a motion filed under rule 3.850, Florida Rules of Criminal Procedure.

Affirmance is without prejudice to seek mandamus relief in the circuit court if the Department of Corrections fails to restore his incentive gain time in accordance with Gwong. TMs disposition is not intended to imply any finding about the appellant’s entitlement to incentive gain time under the applicable statutes and administrative rules.

DELL, POLEN and GROSS, JJ., concur.