Patrick Neel v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JULY TERM2008
PATRICK NEEL,
Appellant,
v.
Case No. 5D08-688
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed August 5, 2008
3.850 Appeal from the Circuit
Court for Orange County,
Roger J. McDonald, Judge.
Patrick Neel, Orlando, pro se.
Bill M
cCollum, Attorney General,
Tallahassee, and Ann M. Phillips,
Assistant
Attorney
General,
Daytona Beach, for Appellee.
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 postconviction 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 appellant'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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