Simon v. State

768 So. 2d 1089, 1995 Fla. App. LEXIS 2278, 1995 WL 92100

Opinion

Confession of Error

PER CURIAM.

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.