Dwayne Johnson v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: November 27, 2024
• Docket: 6D2023-1929
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-1929 Lower Tribunal No. 2000-CF-001452-AXXX-XX _____________________________

DWAYNE JOHNSON,

Appellant, v. STATE OF FLORIDA,

Appellee. _____________________________

Appeal pursuant to Fla. App. P. 9.141(b)(2) from the Circuit Court for Collier County. Elizabeth V. Krier, Judge.

November 27, 2024

PER CURIAM.

Dwayne Johnson appeals an order denying his motion for continuance,

accepting the notice of voluntary withdrawal of his motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850, and dismissing his motion for

postconviction relief with prejudice. We have jurisdiction. See Fla. R. App. P.

9.030(b)(1)(A), 9.140(b)(1)(D).

Under Clark v. State, 491 So. 2d 545, 546 (Fla. 1986), Johnson was entitled

to withdraw his rule 3.850 motion while it was pending when there would be no

prejudice to the State. See Simon v. State, 768 So. 2d 1089, 1090 (Fla. 3d DCA 1995). The sole issue before us is whether the postconviction court properly

dismissed Johnson’s rule 3.850 petition with prejudice. “A typical postconviction

motion should not be dismissed with prejudice when the defendant volunteers to

dismiss it unless there is prejudice to the State or some justification for resolving the

motion on the merits.” McCray v. State, 104 So. 3d 1201, 1201 (Fla. 2d DCA 2012);

see also Hutchinson v. State, 921 So. 2d 780, 781 (Fla. 1st DCA 2006).

The State concedes that it will not suffer prejudice if the petition is dismissed

without prejudice and, therefore, concedes error. The motion for postconviction

relief should have been dismissed without prejudice, and we remand for entry of

such an order.

REVERSED and REMANDED with instructions.

STARGEL, NARDELLA and BROWNLEE, JJ., concur.

Michelle R. Walsh, of Law Offices of Michelle R. Walsh, P.A., Coral Gables, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Taylor A. Schell and Cerese Crawford Taylor, Assistants Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED