MARVIN MCGHEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of post-conviction relief under Rule 3.850 but granted appellant's belated appeal petition after the state failed to refute his factual representations.
A trial court's denial of a Rule 3.850 post-conviction motion is affirmed, but a belated appeal petition is granted when the state does not refute the appellant's sworn factual representations.
[1] When a state fails to refute an appellant's sworn factual representations in response to a belated appeal petition, the petition should be granted under the Dubois proced…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a Rule 3.850 motion for post-conviction relief and requested a belated appeal, which the trial court denied for lack of jurisdiction.…
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PER CURIAM.
Appellant seeks review of an order denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, requesting post-conviction relief. The trial court correctly determined that the motion conclusively demonstrated that appellant was entitled to no relief on the issues properly raised in the motion. Accordingly, we affirm the trial court’s order. One of the issues raised by appellant was a request for a belated appeal. The trial court correctly denied that request because it lacked jurisdiction. Fla. R.App. P. 9.140(j). However, we treated the request as a petition for a belated appeal. Following the procedure outlined in Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA), review dismissed, 717 So. 2d 538 (Fla.1998), we concluded that the petition was sufficient on its face, and we directed the state to show cause why a belated appeal should not be granted. The state’s response does not attempt to refute the factual representations made under oath by appellant. Accordingly, we grant the request for a belated appeal, and remand to the trial court. The clerk of the trial court shall treat this court’s mandate as the notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). If appellant qualifies for appointed counsel, the trial court shall appoint counsel to represent appellant.
AFFIRMED and REMANDED, with directions.
WOLF, WEBSTER and LAWRENCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Renny Ray Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998)
- Funchess v. State, 705 So. 2d 713 (Fla. 1st DCA 1998)