Hutchinson v. State (921 So. 2d 780, 2006)

PER CURIAM.

Appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant filed a timely motion for a voluntary dismissal so that he might refile a facially sufficient postconviction motion. Instead of ruling on the motion for a voluntary dismissal, however, the trial court denied the postconviction motion on the merits. Because appellant filed his motion for a voluntary dismissal before the trial court ruled on his postcon-viction motion and there was no prejudice to the state, appellant was entitled to withdraw his rule 3.850 motion. Hansen v. State, 816 So.2d 808, 809 (Fla. 1st DCA 2002); Carvalleria v. State, 675 So.2d 251 (Fla. 3d DCA 1996). Accordingly, we reverse the denial of appellant’s motion for postconviction relief, and remand with directions to grant the motion for voluntary dismissal without prejudice.

REVERSED and REMANDED, with directions.

BARFIELD, WEBSTER and BENTON, JJ., concur.