Opinion
No. 85-1643.
October 16, 1985.
Appeal of 3.850 motion from Circuit Court, Broward County; Patti Englander Henning, Judge.
Kayo E. Morgan of Sandstrom Haddad, Ft. Lauderdale, for appellant.
No appearance for appellee.
UPON PETITION FOR REHEARING AND CLARIFICATION
Joe Roy Decker appeals from a summary denial of his motion for post-conviction relief brought under the terms of Florida Rule of Criminal Procedure 3.850. This court earlier affirmed such denial without accompanying opinion.
Decker initially pled nolo contendere to a charge of battery on a law enforcement officer. The trial court accepted the plea, withheld adjudication, and placed Decker on eighteen (18) months probation. Inasmuch as Decker was not in custody, we hold, by way of clarification, that Decker lacked standing to seek Rule 3.850 relief. Ferguson v. Stone, 415 So.2d 98 (Fla. 4th DCA 1982); Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981). Contra Rita v. State, 470 So.2d 80 (Fla. 1st DCA 1985).
Further, by way of clarification, assuming that Decker possessed standing, a review upon the merits does not reveal reversible error.
Having made this clarification, the petition for rehearing and clarification is
DENIED.
DOWNEY, WALDEN and BARKETT, JJ., concur.