STEVEN D. LEWIS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A petition for belated appeal will be granted without an evidentiary hearing when factual assertions are not disputed by the state. The omission of trial counsel's name is not fatal if the state can obtain it.
Steven D. Lewis seeks a belated appeal, stating he expressed a desire to appeal at sentencing, is indigent, and no notice of appeal was filed. The Sta…
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PETERSON, Judge.
Steven D. Lewis seeks a belated appeal. Lewis states under oath that he had expressed a desire to appeal at sentencing, and that he is indigent. Lewis further represents that a notice of appeal has never been filed and that he was never contacted by the public defender. The State does not dispute any of the allegations, but argues that Lewis’ petition should be denied for legal insufficiency because it failed to state the name of his trial attorney and whether he asked the trial attorney to file an appeal.
When factual assertions in a sworn petition are not disputed by the state, a petition for belated appeal will be granted without an evidentiary hearing. Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). Here the state does not affirmatively deny that Lewis expressed his desire to appeal at sentencing, but rather, attacks the sufficiency of Lewis’ petition because of the omission of the name of the defense counsel. We disagree that the omission is fatal to the petition when the state can easily obtain the name by contacting the clerk’s office of the court where Lewis was tried.
The petition for belated appeal is granted. Upon the filing hereof, the lower tribunal shall treat this order as the notice of appeal. See Fla. R.App. P. 9.140(j)(5)(D). The record is unclear as to whether Lewis has been declared indigent. It is his responsibility to establish his indigency in order to obtain assistance from the public defender. See Fla. R.App. P. 9.430.
PETITION GRANTED.
W. SHARP and ANTOON, JJ., concur.
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Denson v. State, 712 So. 2d 478 (Fla. 5th DCA 1998)…PER CURIAM. The petition for belated appeal is granted as the state has failed to dispute the legally sufficient allegations of the petition. See Lewis v. State, 713 So. 2d 1029 (Fla. 5th DCA 1998); Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). The filing of this order in the lower tribunal shall be treated as the notice of appeal. Fla. R.App. P. 9.140Q)(5)(D). PETITION GRANTED. DAUKSCH, COBB and PETERSON, JJ., c…
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Diggs v. State, 732 So. 2d 501 (Fla. 5th DCA 1999)…PER CURIAM. The petition for belated appeal is granted as the state has failed to dispute the legally sufficient allegation set forth in Mr. Diggs’ petition. See Lewis v. State, 713 So. 2d 1029 (Fla. 5th DCA 1998); see also Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). Upon filing hereof, the trial court shall treat this order as a notice of appeal. See Fla. R.App. P. 9.140(j)(5)(D). PETITION GRANTED. W. SHARP, GOSHORN AND ANTOO…
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Neal v. State, 735 So. 2d 615 (Fla. 5th DCA 1999)…[*616] HARRIS, J. The petition for belated appeal is granted as the state has failed to dispute the legally sufficient allegation set forth in the petition. See Lewis v. State, 713 So. 2d 1029 (Fla. 5th DCA 1998). See also Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). Upon filing hereof, the trial court shall treat this order as a notice of appeal. See, Fla. R.App. P. 9.140(j)(5)(D). PETERSON, J., concurs. GRIFFIN, J., concurs…
Authorities Cited
- Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998)