Barbaree v. State

District Court of Appeal of Florida

Barbaree v. State

700 So. 2d 469, 1997 Fla. App. LEXIS 12002, 1997 WL 656258

District Court of Appeal of Florida·Decided October 23, 1997·No. No. 97-1735·Published

Opinion

PER CURIAM.

Because the order by which the appellant’s earlier Florida Rule of Criminal Procedure 3.850 motion was denied was not a determination “on the merits,” the trial court erred in denying the subsequent rule 3.850 motion as “successive.” See Fla.R.Crim.P. 3.850(f); Purcell v. State, 641 So.2d 514 (Fla. 1st DCA 1994); Freeman v. State, 589 So.2d 368 (Fla. 1st DCA 1991); Williams v. State, 561 So.2d 1349 (Fla. 1st DCA 1990). We accordingly reverse the order under review and remand this ease to the trial court for consideration of the appellant’s motion in accordance with rule 3.850(d).

MINER, ALLEN and WEBSTER, JJ., concur.

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PER CURIAM.

Because the order by which the appellant’s earlier Florida Rule of Criminal Procedure 3.850 motion was denied was not a determination “on the merits,” the trial court erred in denying the subsequent rule 3.850 motion as “successive.” See Fla.R.Crim.P. 3.850(f); Purcell v. State, 641 So.2d 514 (Fla. 1st DCA 1994); Freeman v. State, 589 So.2d 368 (Fla. 1st DCA 1991); Williams v. State, 561 So.2d 1349 (Fla. 1st DCA 1990). We accordingly reverse the order under review and remand this ease to the trial court for consideration of the appellant’s motion in accordance with rule 3.850(d).

MINER, ALLEN and WEBSTER, JJ., concur.

Barbaree v. State, 700 So. 2d 469, 1997 Fla. App. LEXIS 12002, 1997 WL 656258 (Fla. Ct. App. 1997).

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Opinion

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