Accordingly, loss of eligibility for basic gain time is a collateral consequence of a plea. See id.; Simmons v. State, 611 So.2d 1250, 1252-53 (Fla. 2d DCA 1992); Levens v. State, 598 So.2d 120, 121 (Fla. 1st DCA 1992); Wright v. State, 583 So.2d 399, 400 (Fla. 1st DCA 1991); see also Blackshear v. State, 455 So.2d 555, 556 (Fla. 1st DCA 1984) (forfeiture of accumulated gain time). But see Wilcox v. State, 638 So.2d 527 (Fla. 5th DCA 1994) (post- Ashley decision; suggesting that ineligibility for basic gain time is a direct consequence of a plea); Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991) (pre- Ashley decision; same).
Setzer, 575 So.2d at 748. While we acknowledge that Levens v. State, 598 So.2d 120 (Fla. 1st DCA 1992), and Simmons v. State, 611 So.2d 1250 (Fla. 2d DCA 1992), hold that there must be misadvice by counsel rather than mere nonadvice before a plea may be withdrawn on this basis, we believe that the supreme court in Ashley v. State, 614 So.2d 486 (Fla. 1993), has applied the reasoning of Setzer: [O]ur ruling in Williams [ v. State, 316 So.2d 267, 271 (Fla. 1975)] and the plain language of rule 3.172 require that before a court may accept a guilty or nolo plea from an eligible defendant it must ascertain that the defendant is aware of the possibility and reasonable consequences of habitualization. . . . the defendant must "know" beforehand that his or her potential sentence may be many times greater [than] what it ordinarily would have been under the guidelines and that he or she will have to serve more of it.
AFFIRMED. See Levens v. State, 598 So.2d 120 (Fla. 1st DCA 1992); Wright v. State, 583 So.2d 399, 400 (Fla. 1st DCA 1991). But cf. Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991).
Similarly, allegations that counsel failed to inform the defendant regarding his eligibility for various types of gain-time are insufficient to warrant post-conviction relief, absent a further allegation that counsel affirmatively misrepresented the defendant's eligibility for various types of gain-time. Levens v. State, 598 So.2d 120 (Fla. 1st DCA 1992); Wright v. State, 583 So.2d 399 (Fla. 1st DCA 1991). In other words, the defendant must allege that he or she relied upon affirmative erroneous advice in making a decision to enter a plea.
The First District has since made clear that this fact, and not the mere failure to discuss implications of gain time, was the dispositive consideration in its decision to reverse. Levens v. State, 598 So.2d 120 (Fla. 1st DCA 1992); Wright v. State, 583 So.2d 399 (Fla. 1st DCA 1991).Wright refers to Tarpley and Ray as a correct statement of the law and interprets Netherly, as do we, as being consistent with those decisions.