ROGER POWELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Florida appellate court granted Powell's petition for belated appeal of an order denying his motion to correct illegal sentence, finding that his undisputed claim of never receiving the order was legally sufficient to warrant relief without requiring him to show the motion's merits.
A petitioner seeking belated appeal of an order denying a motion to correct illegal sentence need not make a preliminary showing of the motion's merits when he establishes an undisputed factual basis for the belated appeal.
[1] A petitioner seeking belated appeal of an order denying a motion to correct illegal sentence is not required to demonstrate the merits of the underlying motion to establi…
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Join FLexlaw to unlock all legal intelligenceRoger Powell sought a belated appeal of an order denying his motion to correct illegal sentence, claiming he was never provided a copy of that order, …
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PER CURIAM.
Roger Powell seeks a belated appeal of an order denying his motion to correct illegal sentence, alleging that he was never provided a copy of that order. Respondent acknowledges that it cannot dispute the truthfulness of Powell’s claim in this regard, but argues that a belated appeal should be denied because the motion to correct illegal sentence was completely devoid of merit, and an appeal of that order would only waste this court’s time and resources. However, petitioner is under no obligation to make a preliminary showing concerning the merits of the appeal. Cf. State v. Trowell, 739 So. 2d 77 (Fla.1999). The only issue before the court at this point is whether a belated appeal is warranted, and we conclude that the undisputed facts alleged by Powell are legally sufficient to demonstrate his entitlement to that relief.
Accordingly, the petition for belated appeal of the order denying Powell’s motion to correct illegal sentence, rendered March 22, 2001, in Duval County Circuit Court case number 97-8147-CF, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).
KAHN, VAN NORTWICK and LEWIS, JJ., concur.
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Citator
Cited By
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Ishmael Cash Rolle, III v. State, 201 So. 3d 1246 (Fla. 1st DCA 2016)…PER CURIAM. The petition for belated appeal is granted. See Powell v. State, 806 So. 2d 632 (Fla. 1st DCA 2002). Petitioner shall be allowed a belated appeal from the order denying his motion to correct illegal sentence rendered on February 2, 2016, in Escambia County Circuit Court case numbers 2010-CF-003615 and 2010-CF-003616. Upon issua…
Authorities Cited
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)