Williamson v. State , 841 So. 2d 694 ( 2003 )

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841 So. 2d 694 (2003)
William Ray WILLIAMSON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D03-332.
District Court of Appeal of Florida, Second District.
April 11, 2003.
DAVIS, Judge.

William Ray Williamson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion as to his second and third claims, but we reverse and remand as to his first claim.

On March 11, 1994, a jury convicted Williamson of grand theft (count one) and arson (count two). The court sentenced him on count one to sixty months in prison to be suspended after forty-two months with the last eighteen months to be served on probation. On count two, the court sentenced him to a concurrent sentence of sixty months in prison to be suspended after forty-two months followed by ten years' probation. Williamson subsequently violated his probation, and the trial *695 court sentenced him on both counts to sixty months in prison to be suspended after fifty-five months with credit for time previously served in prison.

In his motion, Williamson claims that he entered his plea to the violation of probation with the understanding that he would only serve thirteen months in prison. He claims that the Department of Corrections (DOC) informed him that, even with credit for time previously served in prison, he will end up serving thirty months in prison due to forfeited gain-time. The record provided by the trial court does not refute Williamson's claim but actually confirms that the court and Williamson contemplated that he would only serve thirteen months in prison. Therefore, we reverse and remand for the trial court to either resentence Williamson in a manner that effectuates the intent of the plea agreement after considering the DOC's forfeiture of gain-time or allow him to withdraw his plea. See Wallace v. State, 793 So. 2d 78 (Fla. 2d DCA 2001); Dellahoy v. State, 816 So. 2d 1253 (Fla. 5th DCA 2002).

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CANADY, JJ., Concur.