Opinion
No. 99-1020.
Opinion filed August 11, 1999.
An Appeal under Florida Rule of Appellate Procedure 9.140(i) from the Circuit Court for Dade County, Thomas M. Carney, Judge, L.T. No. 95-33456
Winston Johnson, in proper person.
Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.
Before GERSTEN, FLETCHER and SHEVIN, JJ.
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.