Suarez v. State

684 So. 2d 342, 1996 Fla. App. LEXIS 13444, 1996 WL 734839

Opinion

PER CURIAM.

Mario Humberto Suarez appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Defendant Suarez pled guilty to sexual batteries which defendant had committed on January 21, 1992. By Rule 3.850 motion he sought to withdraw his guilty plea because on April 21, 1996 (after the date of defendant’s crimes), the Department of Corrections amended Florida Administrative Rule 33-11.0065 so as to remove defendant’s eligibility for incentive gain time.

During the pendency of this appeal, the Florida Supreme Court declared amended Rule 33-11.0065 invalid for offenses committed before its effective date of April 21,1996. Gwong v. Singletary, 683 So.2d 109 (Fla.1996). Since the rule no longer applies to defendant Suarez, we dismiss this appeal as moot. Defendant may seek a recalculation of his gain time through the Department of Corrections’ internal administrative procedures.

Appeal dismissed.