Carvalleria v. State

Full title: CARLOS CARVALLERIA, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jun 19, 1996

675 So. 2d 251 (Fla. Dist. Ct. App. 1996)

Opinion

No. 95-1299.

June 19, 1996.

An Appeal under Fla. R.App. P. 9.140 (g) from the Circuit Court for Dade County, Maynard A. Gross, Judge.

Carlos Carvalleria, in pro. per.

Robert A. Butterworth, Attorney General, for appellee.

Before JORGENSON, GODERICH, and GREEN, JJ.

PER CURIAM.

Carlos Carvalleria appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse on the authority of Simon v. State, 20 Fla. L. Weekly D616, ___ So.2d ___ [1995 WL 92100] (Fla. 3d DCA Mar. 8, 1995). As did the defendant in Simon, Carvalleria filed in the trial court a timely motion for voluntary dismissal of his Rule 3.850 motion so that he could file a corrected motion with the assistance of an inmate law clerk. Instead of dismissing the action, the trial court in Simon and in this case denied the Rule 3.850 motion on the merits, thereby effectively denying the motion for a voluntary dismissal.

Carvalleria was entitled to withdraw his Rule 3.850 motion where there was no prejudice to the State. Simon. Accordingly, we reverse the order denying his motion for postconviction relief, and remand with directions to grant the motion for voluntary dismissal without prejudice. See Clark v. State, 491 So.2d 545, 547 (Fla. 1986).

Reversed and remanded with directions.