GEORGE B. WATSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a renewed motion for post-conviction relief is not successive if the prior motion was voluntarily dismissed before the trial court ruled on its merits.
[1] A successive post-conviction motion is not barred if the prior motion was voluntarily dismissed before the trial court ruled on its merits.
[2] A post-conviction motion raising the same grounds as a prior motion may not be dismissed as successive if the prior grounds were not previously adjudicated on their merit…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a renewed motion for post-conviction relief after his prior, similar motion was withdrawn by his counsel before a ruling on the merits…
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[*130] PER CURIAM.
George B. Watson appeals the summary denial of his “renewed motion for postcon-viction remedy, request for judicial notice” filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as being successive and an abuse of procedure under rule 3.850(f). We reverse.
Watson had previously filed a rule 3.850 motion raising similar claims to those in his renewed motion. The trial court had ordered the State to respond to the prior motion and determined that the response did not conclusively refute Watson’s claims. It accordingly scheduled the motion for an evidentiary hearing. Watson’s counsel withdrew the motion at that hearing before the trial court ruled on its merits.
Under these circumstances, we conclude that Watson’s renewed motion was not successive of his prior motion, nor did it constitute an abuse of procedure. 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 DCA 1999) (holding that a rule 3.850 motion “that raises the same grounds as a prior motion may not be dismissed if those grounds were not previously adjudicated on their merits”). The trial court erred in denying it on those grounds.
We accordingly reverse. Upon remand, the trial court shall reconsider Watson’s renewed motion on its merits. The trial court shall determine whether an evidentiary hearing is required. If the trial court summarily denies the motion, it shall attach those portions of the record that conclusively refute Watson’s claims.
Reversed.
FULMER, A.C.J., and GREEN and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Taylor v. State, 902 So. 2d 979 (Fla. 4th DCA 2005)…. 3.850(f). We reverse and remand for further proceedings. 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)
- Wright v. State, 741 So. 2d 1146 (Fla. 2d DCA 1999)
- Bryant v. State, 737 So. 2d 599 (Fla. 4th DCA 1999)