RENNY RAY DUBOIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DuBois sought habeas corpus relief and a belated appeal, claiming ineffective assistance of counsel for failing to file a timely notice of appeal. The trial court dismissed the habeas petition and denied the motion for belated appeal. The appellate court affirmed the habeas dismissal but granted the petition for belated appeal, relying on Trowell v. State.
The court affirmed the dismissal of the habeas corpus petition. The court granted the petition for a belated appeal, finding the appellant's sworn motion sufficient on its face and rejecting the trial court's forfeiture rationale based on the Trowell precedent.
[1] A petition for a writ of habeas corpus may be dismissed if the trial court correctly rules on the petition.
[2] A motion for a belated appeal may be treated as a petition pursuant to Florida Rule of Appellate Procedure 9.140(j).
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Join FLexlaw to unlock all legal intelligence“Finding the petition sufficient on its face, we directed the state to show cause why the requested relief should not be granted. The state's response does not attempt to refute the factual representations contained in appellant's sworn petition.”
Establishes that the court's decision was based on unrebutted factual allegations in the sworn motion
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Join FLexlaw to unlock all legal intelligenceAppellant DuBois entered no contest pleas without reserving any issue. He subsequently sought a belated appeal, claiming his trial counsel failed to h…
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PER CURIAM.
Appellant seeks review of orders dismissing his petition requesting a writ of habeas corpus and denying his motion requesting a belated appeal pursuant to Florida Rule of Criminal Procedure 8.850. We conclude that the trial court correctly dismissed the petition for a writ of habeas corpus. Accordingly, we affirm that order without further discussion. We treat the motion requesting a belated appeal as a petition pursuant to Florida Rule of Appellate Procedure 9.140(j), and grant the petition.
Appellant’s sworn motion seeking a belated appeal states that appellant received ineffective assistance from trial counsel because counsel failed to honor his timely request to file a notice of appeal. The trial court denied the motion on the ground that appellant had forfeited his right to appeal by entering no contest pleas without reserving any issue. We treated the motion as a petition seeking a belated appeal pursuant to Florida Rule of Appellate Procedure 9.140®. Finding the petition sufficient on its face, we directed the state to show cause why the requested relief should not be granted. The state’s response does not attempt to refute the factual representations contained in appellant’s sworn petition. Accordingly, based upon our recent decision in Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998) (en banc), we grant the request for a belated appeal, and remand to the trial court. Within thirty days of the date of the mandate in this case, appellant’s trial counsel shall file a notice of appeal, as required by Florida Rule of Appellate Procedure 9.140(b)(5). Should trial counsel fail to comply, this court’s mandate will be treated as the notice of appeal. See Fla. RApp. P. 9.140(j)(5)(D). If appellant qualifies for appointed counsel, the trial court shall appoint counsel to represent appellant on appeal.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
ALLEN, WEBSTER and PADOVANO, JJ., concur.
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Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000)…g pursuant to a rule of criminal procedure is by petition to this court pursuant to rule 9.140. Funchess. On the merits, the state’s response does not attempt to refute the factual representations made under oath by appellant. See, Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998). Nor does the state’s response present a good-faith factual basis for opposing the relief requested by the appellant. See, Wiggins v. State, 745 So. 2d 540 (Fla. 1st DCA 1999). Accordingly, we find that petitioner has establishe…
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Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)…ment to a belated appeal does not depend on a determination of disputed, facts, it is unnecessary for this court to appoint a commissioner to make a report and recommendation. See Hammond v. State, 706 So. 2d 73 (Fla. 1st DCA 1998); Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998).1 [*1103] Florida Rule of Appellate Procedure 9.140(j), created a new procedure for filing original petitions for belated appeal directly in this court. That procedure has been inconsistently applied, as our sister court noted in…
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Wessells v. State, 737 So. 2d 1103 (Fla. 1st DCA 1998)…oners were granted belated appeals based solely upon the fact that there were no disputed issues of fact, while others have been required to establish entitlement to the belated appeal in evidentiary proceedings. Id. We explained in Dubois v. State, 705 So. 2d 713 (Fla 1st DCA 1998), and Hammond v. State, 706 So. 2d 73 (Fla. 1st DCA 1998), that the state must allege a good faith basis for disputing the factual allegations in the petition for belated appeal before this court will order an eviden-tiary hearing.…
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- Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)