WILLIAMS v. STATE (1999)

District Court of Appeal of Florida,Fifth District.

Stanley WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 98-1541.

Decided: March 05, 1999

James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Simone P. Firley, Assistant Attorney General, Daytona Beach, for Appellee.

Stanley Williams appeals that portion of his judgment that stated:

X The court allows unforfeited gain time previously awarded on the above case/count (Gain time may be forfeited by the Department of Corrections under section 944.28(1)).

Williams contends that another portion of the judgment properly awarded gain time to him and that the portion quoted above creates a conflict that should not have been included in his judgment. He argues that section 944.28(1) does not apply to his offenses because he committed them prior to October 1, 1989.

We agree with Williams that his gain time earned during the time he served his sentence on offenses committed prior to October 1, 1989 cannot be forfeited by the Department of Corrections and that the above quoted provision was erroneously included in his judgment. See Tripp v. State, 622 So.2d 941, 942, n. 2 (Fla.1993). We vacate the portion of the judgment which includes the language quoted above.

JUDGMENT PARTIALLY VACATED.

PER CURIAM.

COBB, HARRIS and PETERSON, JJ., concur.

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