Opinion on Rehearing
We grant appellant’s motion for rehearing, withdraw our opinion dated September 26, 1989, and substitute for it the following opinion on rehearing:
Appellant entered a negotiated plea of nolo contendere with reservation of the right to appeal denial of his motion to dismiss on statute of limitations grounds. Because the identical issue was the subject of an earlier petition for writ of prohibition which this court denied, the denial is deemed to be a ruling on the merits. Obanion v. State, 496 So.2d 977, 980 (Fla. 3d DCA 1986), review denied, 504 So.2d 768 (Fla.1987). Even if Obanion were not controlling, the briefing of the petition for writ of prohibition was directed to the merits and not to any procedural deficiency. Under either analysis, we conclude that an earlier panel of this court has passed on the merits of defendant’s statute of limitations defense, see generally Rubin v. State, 390 So.2d 322 (Fla.1980); State v. Garofalo, 453 So.2d 905 (Fla. 4th DCA
Affirmed.