Summary
noting that because rule 3.850 motion "was dismissed before the trial court could consider it on the merits, a subsequent motion will not be considered successive"
Summary of this case from Watson v. StateOpinion
Nos. 99-1860 and 99-1865.
Opinion filed July 14, 1999.
Consolidated appeals of orders denying rule 3.800(a) 3.850 motions from the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County; John L. Phillips, Judge; L.T. Case No. 97-10755 CFA02.
Joseph H. Bryant, Miami, pro se.
No appearance required for appellee.
We consolidate, for purposes of this opinion only, appellant's related Rule 3.800(a) and Rule 3.850 appeals.
The order summarily denying appellant's Rule 3.800(a) motion is affirmed, as his claim of alleged scoresheet error — the inclusion of felonies belonging not to appellant but to his brother — is a claim that is not apparent from the face of the scoresheet and thus is not cognizable pursuant to Rule 3.800(a). See Hernandez v. State, 698 So.2d 906 (Fla. 4th DCA 1997).
We affirm the dismissal of appellant's Rule 3.850 motion pursuant to appellant's voluntary motion to dismiss without prejudice, without prejudice to his timely refiling it. As the motion was dismissed before the trial court could consider it on the merits, a subsequent motion will not be considered successive. See Cabrera v. State, 721 So.2d 1190, 1191 (Fla. 2d DCA 1998).
GUNTHER, STEVENSON and GROSS, JJ., concur.