HOWARD v. STATE (1997)

District Court of Appeal of Florida,First District.

Brian Richard HOWARD, Appellant, v. STATE of Florida, Appellee.

No. 96-3326.

Decided: February 28, 1997

Appellant, pro se. No appearance for Appellee.

Brian Howard (Howard) timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Howard alleged his plea was rendered involuntary by the 1996 amendment to Florida Administrative Code Rule 33-11.0065, which applied retroactively to deny him the ability to earn incentive gain time. We affirm as this claim does not state a claim cognizable in a postconviction proceeding. See McConnaughy v. State, 684 So.2d 851 (Fla. 5th DCA 1996); Washington v. State, 683 So.2d 215 (Fla. 4th DCA 1996). Our affirmance is without prejudice to Howard seeking mandamus relief in circuit court, if necessary, to require the Department of Corrections to restore his incentive gain time in accordance with Gwong v. Singletary, 683 So.2d 109 (Fla.1996).

AFFIRMED.

PER CURIAM.

WEBSTER, LAWRENCE and PADOVANO, JJ., concur.

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