CHRISTOPHER MICHAEL PORTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of post-conviction relief because the motion lacked proper verification, though it found merit in the claim that trial counsel failed to timely file a notice of appeal, and permitted the appellant to file a belated appeal petition with the appellate court under amended rules.
A motion for post-conviction relief lacking proper oath or verification must be denied, but the appellant may file a petition for belated appeal with the appellate court.
[1] A motion for post-conviction relief lacking proper oath or verification must be denied, but denial may be without prejudice to allow filing a properly verified motion or,…
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Join FLexlaw to unlock all legal intelligence“This claim, if found to be true, would entitle the movant to relief.”
The court acknowledged the merit of the claim that trial counsel failed to timely file a notice of appeal despite the client's request.
Christopher Michael Porter sought post-conviction relief, claiming trial counsel failed to timely file a notice of appeal despite his request to do so…
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PER CURIAM.
Christopher Michael Porter appeals an order of the trial court which denied his motion for post-conviction relief. We find that, with one exception, appellant’s claims were properly denied as being without merit. The exception is the contention that trial counsel failed to timely file a notice of appeal even though his client requested him to do so. This claim, if found to be true, would entitle the movant to relief. Because the motion for posteonviction relief does not contain a proper oath we affirm its denial, albeit for a reason other than that expressed by the trial judge.
We would ordinarily affirm without prejudice to appellant’s right to file a properly verified motion. Anderson v. State, 627 So. 2d 1170 (Fla.1993). During the pendency of this appeal, however, an amendment to the Florida Rules of Appellate Procedure resulted in the transfer of jurisdiction to consider such claims from the trial court to this court. See rule 9.140(j)(l), Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996). Accordingly, we affirm the trial court’s ruling but do so without prejudice to the right of appellant to file a petition with this court seeking belated appeal.
AFFIRMED.
WEBSTER, LAWRENCE and PADOVANO, JJ., concur.
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Citator
Authorities Cited
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Anderson v. State, 627 So. 2d 1170 (Fla. 1993)