RANDOLPH JOSEPH DANDRY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court granted petitioner's petition for belated appeal of a 2003 criminal judgment, finding that trial counsel's negligence in failing to timely file did not bar relief where the state did not dispute counsel's sworn acknowledgment of the failure.
A petitioner is entitled to a belated appeal when trial counsel negligently fails to timely file and the state does not establish a good faith basis to dispute counsel's sworn admission of negligence.
[1] A petitioner may obtain a belated appeal when trial counsel's negligence caused failure to timely file and the state does not dispute counsel's sworn acknowledgment of su…
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Join FLexlaw to unlock all legal intelligencePetitioner Dandry received a judgment and sentence on September 15, 2003, in Okaloosa County Circuit Court. Trial counsel made a timely request for ap…
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PER CURIAM.
Speaking through his trial counsel, petitioner seeks a belated appeal of the judgment and sentence rendered on or about September 15, 2003, in Okaloosa County Circuit Court case number 03-698-CF. Counsel states in the sworn petition that petitioner made a timely request for an appeal, and candidly acknowledges that the failure to timely file an appeal was attributable solely to her negligence. In response to an order to show cause, the state has not established a good faith basis for disputing counsel’s sworn assertion. Moreover, despite the state’s argument to the contrary, our dismissal of and refusal to reinstate the prior untimely appeal filed by counsel did not constitute an adjudication of the question of whether petitioner is entitled to a belated appeal. See Hickey v. State, 831 So. 2d 262 (Fla. 1st DCA 2002). Accordingly, the petition seeking belated appeal 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). If petitioner qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent petitioner on appeal.
KAHN, VAN NORTWICK and POLSTON, JJ., concur.
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Citator
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- Richardson v. Fla. Dep't of Child. & Families, 831 So. 2d 262 (Fla. 1st DCA 2002)
- Hickey v. State, 831 So. 2d 262 (Fla. 1st DCA 2002)