Neel v. State

District Court of Appeal of Florida

Neel v. State

988 So. 2d 1152, 2008 Fla. App. LEXIS 11873, 2008 WL 3154294

CourtDistrict Court of Appeal of Florida

DecidedAugust 5, 2008

DocketNo. 5D08-688

StatusPublished

Cited by1 cases

This text of 988 So. 2d 1152 (Neel v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Neel v. State, 988 So. 2d 1152, 2008 Fla. App. LEXIS 11873, 2008 WL 3154294 (Fla. Ct. App. 2008).

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Opinion

PLEUS, J.

We reverse the trial court’s summary denial of appellant’s motion for enforcement of plea agreement. While the trial court is correct that it does not have the authority to instruct the Department of Corrections (“DOC”) on how it administers sentences, it does have the authority to ensure that a forfeiture of gain time does not interfere with the terms of a valid plea agreement. See Dellofano v. State, 946 So.2d 127, 128 (Fla. 5th DCA 2007); Dellahoy v. State, 816 So.2d 1253, 1253 (Fla. 5th DCA 2002).

In the instant motion, appellant alleges that despite the intention of all parties that appellant receive a sentence of 18 months incarceration in Orange County case number 48-1999-CF-1144, the DOC has nonetheless forfeited nine months of previously-earned gain time resulting in a 27-month term of incarceration. Because appellant’s motion states a viable claim for postconvietion relief and because appellant’s unrefuted allegations must be taken as true, the instant matter must be reversed and remanded for an evidentiary hearing. Furthermore, because appel[1153]*1153lant’s allegations, if true, would appear to demonstrate appellant’s entitlement to an immediate release from prison, we direct the trial court to take immediate action to ensure that a hearing is conducted as soon as practicable regarding the issue raised in appellant’s motion.

REVERSED and REMANDED.

PALMER, C.J. and TORPY, J., concur.

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PLEUS, J.

We reverse the trial court’s summary denial of appellant’s motion for enforcement of plea agreement. While the trial court is correct that it does not have the authority to instruct the Department of Corrections (“DOC”) on how it administers sentences, it does have the authority to ensure that a forfeiture of gain time does not interfere with the terms of a valid plea agreement. See Dellofano v. State, 946 So.2d 127, 128 (Fla. 5th DCA 2007); Dellahoy v. State, 816 So.2d 1253, 1253 (Fla. 5th DCA 2002).

In the instant motion, appellant alleges that despite the intention of all parties that appellant receive a sentence of 18 months incarceration in Orange County case number 48-1999-CF-1144, the DOC has nonetheless forfeited nine months of previously-earned gain time resulting in a 27-month term of incarceration. Because appellant’s motion states a viable claim for postconvietion relief and because appellant’s unrefuted allegations must be taken as true, the instant matter must be reversed and remanded for an evidentiary hearing. Furthermore, because appel[1153]*1153lant’s allegations, if true, would appear to demonstrate appellant’s entitlement to an immediate release from prison, we direct the trial court to take immediate action to ensure that a hearing is conducted as soon as practicable regarding the issue raised in appellant’s motion.

REVERSED and REMANDED.

PALMER, C.J. and TORPY, J., concur.

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988 So. 2d 1152, 2008 Fla. App. LEXIS 11873, 2008 WL 3154294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neel-v-state-fladistctapp-2008.

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