Westberry v. State

557 So. 2d 240, 1990 Fla. App. LEXIS 1267, 1990 WL 18480

Opinion

PER CURIAM.

Elliott Westberry appeals the summary denial of his motion to correct sentence. We reverse.

Westberry states that he was sentenced to four years in prison, followed by two years community control, in 1988.¹ He was released in July, 1989, and subsequently violated community control. The court then sentenced Westberry to six years in prison with credit only for 129 days spent in jail following his second arrest.² West-berry seeks credit for all time served on the first prison sentence, including gain time. See State v. Green, 547 So.2d 925 (Fla.1989); Dixon v. State, 546 So.2d 1194 (Fla. 3d DCA 1989). The trial court’s order fails to refute this claim.

Accordingly, we remand this case for further proceedings in accordance with Florida Rule of Criminal Procedure 3.850.

DANAHY, A.C.J., and FRANK and PATTERSON, JJ., concur.

1 . Youthful Offender.

2 . A sentencing document furnished by the trial court indicates that the amount of credit actually was 189 days.