JOSEPH H. BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We consolidate, for purposes of this opinion only, appellant’s related Rule 3.800(a) and Rule 3.850 appeals.
The order summarily denying appellant’s Rule 3.800(a) motion is affirmed, as his claim of alleged scoresheet error-the inclusion of felonies belonging not to appellant but to his brother--is a claim that is not apparent from the face of the scoresheet and thus is not cognizable pursuant to Rule 3.800(a). See Hernandez v. State, 698 So. 2d 906 (Fla. 4th DCA 1997).
We affirm the dismissal of appellant’s Rule 3.850 motion pursuant to appellant’s voluntary motion to dismiss without prejudice, without prejudice to his timely refiling it. As the motion was dismissed before the trial court could consider it on the merits, a subsequent motion will not be considered successive. See Cabrera v. State, 721 So. 2d 1190, 1191 (Fla. 2d DCA 1998).
GUNTHER, STEVENSON and GROSS, JJ., concur.
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Watson v. State, 754 So. 2d 129 (Fla. 2d DCA 2000)…edure. See Cabrera v. State, 721 So. 2d 1190, 1191 (Fla. 2d DCA 1998) (holding defendant’s second rule 3.850 motion was “not successive as his first motion was voluntarily dismissed before the trial court could rule on its merits”); Bryant v. State, 737 So. 2d 599, 600 (Fla. 4th DCA 1999) (noting that because rule 3.850 motion “was dismissed before the trial court could consider it on the merits, a subsequent motion will not be considered successive”); see also Wright v. State, 741 So. 2d 1146, 1147 (Fla. 2d…
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Taylor v. State, 902 So. 2d 979 (Fla. 4th DCA 2005)…dings. Appellant voluntarily dismissed his first post-conviction motion before the trial court ruled on the merits. Accordingly, the subsequently filed motion was not successive. Watson v. State, 754 So. 2d 129 (Fla. 2d DCA 2000); Bryant v. State, 737 So. 2d 599 (Fla. 4th DCA 1999). FARMER, C.J., POLEN and SHAHOOD, JJ., concur.…
Authorities Cited
- Cabrera v. State, 721 So. 2d 1190 (Fla. 2d DCA 1998)
- Hernandez v. State, 698 So. 2d 906 (Fla. 4th DCA 1997)