WAGNER V. STATE

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2004 LEONARD WAGNER, ** Appellant, ** vs. ** CASE NO. 3D03-2626 THE STATE OF FLORIDA, ** LOWER TRIBUNAL NO. 98-2800 Appellee. ** Opinion filed March 3, 2004. An Appeal from the Circuit Court for Dade County, Pedro P. Echarte, Jr., Judge. Leonard Wagner, in proper person. Charles J. Crist, Jr., Attorney General and Annette M. Lizardo, Assistant Attorney General, for appellee. Before SCHWARTZ, C.J., and LEVY and GERSTEN, JJ. PER CURIAM. The trial court dismissed the appellant s 3.850 motion on the grounds of untimeliness and successiveness. Because, as the state correctly acknowledges, both conclusions were incorrect, the order under review is reversed for consideration of the motion on its merits.

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