OSCAR THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Defendant, Oscar Thomas, seeks to appeal the denial of his Rule 3.850 motion. This court entered a show cause order why his appeal should not be dismissed because his notice of appeal was untimely. Defendant responds he had filed an earlier, timely notice which was “overlooked” by the clerk; however, he provides no documentation to support his assertion. Consequently, this appeal must be dismissed as untimely. This dismissal is without prejudice to file a petition for belated appeal which is under oath and complies with Florida Rule of Appellate Procedure 9.141(c). Although the rule does not require it, if he also provides documentation to establish that he had filed an earlier, timely notice which was overlooked due to the state’s actions, it would facilitate his appeal. See Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997) (stating defendant entitled to belated appeal when his right to appeal has been frustrated by the circuit court clerk’s “state action”).
DISMISSED without prejudice.
SHARP, W., THOMPSON and TORPY, J.J., concur.
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Izquierdo v. State, 935 So. 2d 1243 (Fla. 5th DCA 2006)…ing that in a belated appeal proceeding, only if a petitioner files a legally sufficient petition, does the burden shift to the state to specifically dispute his allegations). No state action caused his failure to timely appeal. See Thomas v. State, 905 So. 2d 1037, 1037-38 (Fla. 5th DCA 2005) (recognizing that state action may facilitate belated appeal); see also Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997) (holding that defendant was entitled to belated appeal because his right to appeal had been f…
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Roca-Moreno v. State, 971 So. 2d 994 (Fla. 5th DCA 2008)…, if Mr. Roca-Moreno again provides documentation to establish that he filed an earlier, timely motion for rehearing, which was somehow overlooked due to the State’s actions, it would facilitate his request for a belated appeal. See Thomas v. State, 905 So. 2d 1037, 1038 (Fla. 5th DCA 2005), citing Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997) (stating defendant entitled to belated appeal when his right to appeal has been frustrated by the circuit court clerk’s “state action”). DISMISSED without pre…
Authorities Cited
- Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997)
- State v. Thomas, 696 So. 2d 1290 (Fla. 4th DCA 1997)