Ricardo v. State

504 So. 2d 539, 12 Fla. L. Weekly 893, 1987 Fla. App. LEXIS 7428

Opinion

WENTWORTH, Judge.

Appellant seeks review of a sentence imposed for the offense of aggravated battery, presenting several issues on appeal. We find no error with regard to the court’s departure from the sentence recommended under the Fla.R.Crim.P. 3.701 sentencing guidelines. However, we conclude that the court erred in directing the denial of gain time, insofar as this directive was predicated upon the application of section 27.3455, Florida Statutes (1985), since appellant’s offense occurred prior to the effective date of this statute. See Comer v. State, 502 So.2d 513 (Fla. 1st DCA 1987). On remand, the court should also determine the amount of time appellant has served to insure that the appropriate amount of credit is awarded, as appellee concedes.

The sentence is vacated and the cause remanded for resentencing in accordance herewith.¹

WIGGINTON and NIMMONS, JJ., concur.

Footnotes

1

. Comer v. State, supra, indicates that section 27.3455, Florida Statutes (1986), may be applied on remand since the law as amended no longer restricts the accrual of gain time.