
    James R. HAWTHORNE, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. TT-75.
    District Court of Appeal of Florida, First District,
    Feb. 16, 1981.
    On Rehearing April 13, 1981.
    James R. Hawthorne, in pro per.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

BOOTH and JOANOS, JJ., and PEARSON, TILLMAN (Retired), Associate Judge, concur.

ON PETITION FOR REHEARING

JOANOS, Judge.

After having his petition for writ of ha-beas corpus denied in Circuit Court, appellant appealed to this court arguing that it was unconstitutional to apply the amended “gain time” statute (Section 944.27, Florida Statutes (1978)) to reduce the gain time he was credited with under the statute in effect on the date he was sentenced. We affirmed the Circuit Court’s reliance on Harris v. Wainwright, 376 So.2d 855 (Fla. 1979) in denying the petition. Since our affirmance, however, the United States Supreme Court in Weaver v. Graham, - U.S. -, 101 S.Ct. 960, 67 L.Ed.2d 16 (1981) determined that á retroactive application of § 944.27 (1978) is unconstitutional as an ex post facto law.

We note that in his petition for rehearing, appellant alleges that he is entitled to release under the proper calculation of his gain time. If this allegation is true (a fact which we cannot determine on appeal), ha-beas corpus is the appropriate remedy.

REVERSED and REMANDED for reconsideration in light of Weaver v. Graham, supra, and a determination whether appellant is entitled to release.

BOOTH, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.  