Benton v. Florida Dept. of Corr

Full title: CHRISTOPHER TODD BENTON, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS…

Court: District Court of Appeal of Florida, First District

Date published: Apr 12, 2001

782 So. 2d 981 (Fla. Dist. Ct. App. 2001)

Opinion

No. 1D00-3696.

Opinion filed April 12, 2001.

An appeal from an order of the Circuit Court for Leon County. Nikki Ann Clark, Judge.

Dismissed.

Christopher Todd Benton, pro se, appellant.

Robert A. Butterworth, Attorney General, and Kimberly R. Wilcox, Assistant Attorney General, Tallahassee, for appellee.

PER CURIAM.

The trial court dismissed without prejudice appellant's 42 U.S.C. § 1983 claim for failure to demonstrate an exhaustion of his administrative remedies. Because the dismissal was without prejudice, the order is neither a final order nor an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130. See Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). If appellant is unable or unwilling to amend the complaint to correct the defect, the proper course is to so advise the court and request entry of a final order of dismissal with prejudice which may be appealed. See Ponton v. Gross, 576 So.2d 910, 912 (Fla. 1st DCA 1991).

MINER, KAHN and WEBSTER, JJ., Concur.