JOSE M. VEGA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.

Fla. 5th DCA | 2018-04-06
No. Case No. 5D17–3493
Sawaya, J., Orfinger, J., Berger, J.
239 So. 3d 796 Florida District Court of Appeal, Fifth District (2018) Positive Treatment
Cited by 1 case

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Synopsis

Appellant's plea agreement promised eighteen months additional imprisonment, but DOC gain-time calculations required him to serve longer; court reversed and remanded for resentencing or plea withdrawal.


Holding

When a plea agreement specifies a definite term of imprisonment and DOC gain-time calculations would require the defendant to serve longer than agreed, the trial court must either resentence in accordance with the agreement or allow plea withdrawal.


Headnotes

[1] A plea agreement that specifies a definite term of imprisonment is breached when gain-time credits from prior incarceration cause the defendant to serve longer than the a…

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Facts & Procedural History

Vega pleaded to violate probation under a plea agreement requiring eighteen months additional imprisonment. The trial court sentenced him to eleven ye…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

*797The appellant, Jose M. Vega, appeals the trial court's summary denial of the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Vega alleged that he entered into a plea agreement that provided that he would admit his violation of probation and serve an additional eighteen months in prison. Vega had previously served a sentence of ten years in prison on the substantive charges. The trial court, in accordance with the plea agreement, sentenced him to eleven years and 283 days in prison, with credit for 103 days served in the county jail and the ten years he had previously served in the Department of Corrections.

After he was sentenced, the Department of Corrections calculated the gain time Vega was entitled to from his previous term of incarceration. Pursuant to that calculation, Vega would be required to serve in excess of the eighteen months in prison provided for in his plea agreement. Accordingly, we reverse the order denying Vega's motion and remand this case to the trial court to either resentence Vega in accordance with the plea agreement or to allow him to withdraw his plea. See Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007) ; Dellahoy v. State, 816 So.2d 1253, 1253 (Fla. 5th DCA 2002).

REVERSED and REMANDED.

SAWAYA, ORFINGER and BERGER, JJ., concur.


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