DENNIS DENSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a petitioner seeking a belated appeal is not required to provide an affidavit from trial counsel, and the state must dispute the claims with specific allegations to warrant an evidentiary hearing.
[1] A petition for a belated appeal must include specific facts sworn to by the petitioner or petitioner's counsel that constitute the alleged ineffective assistance of couns…
[2] A petitioner seeking a belated appeal is not required to provide an affidavit from trial counsel.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePetitioner sought a belated appeal, alleging his attorney failed to file one after being instructed. The state acknowledged the allegations were facia…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Appellate Procedure 9.140(J) cases and more on FLexlaw
PER CURIAM.
Petitioner Dennis Denson seeks a belated appeal, alleging that at sentencing he advised his trial attorney of his desire to appeal and the attorney agreed to file an appeal, but failed to do so. In response, the state points out that although petitioner makes the appropriate allegations, he has failed to present any affidavits or any supporting documentation. Therefore, the state “joins” petitioner in requesting that the issue be referred to the lower court for an evidentiary hearing.
Florida Rule of Appellate Procedure 9.140(j) now establishes the procedure for seeking a belated appeal. Rule 9.140(j)(2)(F) states that the petition shall include “the specific facts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel.” The petition in this case is made under oath and the allegations are facially sufficient.
The Committee Notes to the rule provide that “[i]n the rare case where entitlement to belated appeal depends on a determination of disputed facts, the appellate court may appoint a commissioner to make a report and recommendation.” The state requests that this court follow this recommended procedure, but the state does not specifically dispute petitioner’s allegations. Instead, the state argues that, in the absence of a sworn affidavit from trial counsel or supporting documentation, an evidentiary hearing should be required. However, the rule does not require a petitioner to provide an affidavit from trial counsel. Instead, the state must dispute the petitioner’s sworn claim, if not by affidavit, at least by specific allegations. In the absence of a disputed fact, the petition will be granted without an evidentiary hearing. However, because this is a new procedure, and evidentiary hearings have been ordered in some cases although facts have not been specifically disputed, in this case the state may file a supplemental response to the show cause order within 20 days of this opinion.
It is so ordered.
DAUKSCH, COBB and PETERSON, JJ. concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
-
State v. Trowell, 739 So. 2d 77 (Fla. 1999)…use it presents an issue cognizable under Robinson. See, e.g., White v. Singletary, 711 So. 2d 640, 640 (Fla. 3d DCA 1998); Bridges, 518 So. 2d at 300. The opinions of the Fifth District have not squarely addressed this . issue. See Denson v. State, 710 So. 2d 144, 145 (Fla. 5th DCA 1998) (finding petition for belated appeal sufficient if it alleges that the attorney failed to file the appeal as requested, but not specifying whether the defendant had pleaded guilty or gone to trial); Courson v. State, 652 So.…
-
Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)…8).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 Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). Some petitioners 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.…
-
Wessells v. State, 737 So. 2d 1103 (Fla. 1st DCA 1998)…ated appeal. Florida Rule of Appellate Procedure 9.140®, 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 Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). Some petitioners 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.…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence