WINSTON JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
WINSTON JOHNSON, APPELLANT,
THE STATE OF FLORIDA, APPELLEE
739 So. 2d 160
Florida District Court of Appeal, Third District (1999)
Positive Treatment
Cited by 4 cases
Opinion of the Court
PER CURIAM.
We treat defendant’s petition for writ of prohibition as a notice of appeal from the order denying his Rule 3.850 motion. Defendant filed a timely voluntary dismissal motion. The court did not rule on the dismissal motion; instead, it denied the Rule 3.850 motion on the merits. As in Carvalleria v. State, 675 So. 2d 251 (Fla. 3d DCA 1996), the trial court effectively denied defendant’s motion for voluntary dismissal by denying his Rule 3.850 motion on the merits. Absent prejudice to the state, defendant was entitled to withdraw his motion. Carvalleria, 675 So. 2d at 251. Accordingly, we reverse the order and remand with directions to grant defendant’s dismissal motion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hampton v. State, 949 So. 2d 1197 (Fla. 4th DCA 2007)….850 movant is entitled to withdraw his motion before it is ruled on. See Clark v. State, 491 So. 2d 545 (Fla. 1986); Washington v. State, 937 So. 2d 271 (Fla. 4th DCA 2006); Hutchinson v. State, 921 So. 2d 780 (Fla. 1st DCA 2006); Johnson v. State, 739 So. 2d 160 (Fla. 3d DCA 1999). We conclude that the trial court departed from the essential requirements of law when it did not allow Defendant to withdraw his motion in its entirety and to refile it. Because he is incarcerated, Defendant’s motion is consider…
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Nelson v. State, 784 So. 2d 1266 (Fla. 1st DCA 2001)…request by denying his rule 3.850 motion on the merits. Because Appellant was entitled to withdraw his rule 3.850 motion where there was no prejudice to the State, we reverse. See Ford v. State, 752 So. 2d 1255 (Fla. 1st DCA 2000); Johnson v. State, 739 So. 2d 160 (Fla. 3rd DCA 1999); Carvalleria v. State, 675 So. 2d 251 (Fla. 3rd DCA 1996). Accordingly, we reverse the order denying postconviction relief and remand with directions to grant appellant’s motion for voluntary dismissal without prejudice. BARF…
Authorities Cited
- Sterling Franklyn Stubbs v. State, 675 So. 2d 251 (Fla. 3d DCA 1996)