Summary
holding defendant was entitled to voluntarily dismiss his 3.850 motion, where the voluntary dismissal motion was filed before the court rendered an order on the 3.850 motion, and there would be no prejudice to the State
Summary of this case from Thomas v. StateOpinion
No. 94-2020.
March 8, 1995.
An appeal under Fla.R.App.P. 9.140 (g) from the Circuit Court for Dade County; Alan L. Postman, Judge.
Anthony Tyrone Simon, in pro. per.
Robert A. Butterworth, Atty. Gen., and Cynthia Ann Greenfield, Asst. Atty. Gen., for appellee.
Before JORGENSON, COPE and GREEN, JJ.
Confession of Error
Anthony Tyrone Simon appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse.
Appellant filed a timely Rule 3.850 motion in the trial court. While it was pending, appellant filed a motion for voluntary dismissal so he could file a corrected motion, with the assistance of an inmate law clerk. The trial court denied the Rule 3.850 motion on the merits, which necessarily denied the motion for voluntary dismissal.
The State concedes that under Clark v. State, 491 So.2d 545 (Fla. 1986), the appellant was entitled to withdraw his Rule 3.850 motion where, as here, there would be no prejudice to the State. Id. at 546. The order denying Rule 3.850 relief is reversed and the cause remanded with directions to grant the motion for voluntary dismissal, without prejudice. See id. at 547.
Reversed and remanded.