RICKY E. SIMMONS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Florida appellate court granted a belated appeal petition where the defendant alleged he did not timely receive notice of the trial court's order denying post-conviction relief, despite the trial court's records indicating service at his institutional address.
A trial court's notation that an order was furnished to a defendant at his institutional address is insufficient to rebut a sworn allegation that the defendant did not timely receive the order, and does not create a disputed factual issue requiring an evidentiary hearing.
[1] A defendant's sworn allegation of non-receipt of a trial court order is not rebutted by the court's notation of service at the defendant's institutional address, absent e…
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Join FLexlaw to unlock all legal intelligenceRicky E. Simmons sought a belated appeal of an October 15, 2004 order denying his motion for post-conviction relief. He alleged in a sworn petition th…
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PER CURIAM.
By timely petition, Ricky E. Simmons seeks a belated appeal of an October 15, 2004, order denying his motion for post-conviction relief in Bay County Circuit Court case number 99-1800. He alleges in his sworn petition that in spite of his filing of numerous notices of inquiry concerning the status of his motion, he did not receive a copy of the order of denial until February 2006.
In response to an order to show cause, the state contends that a belated appeal should not be granted because the trial court’s order reflects that a copy thereof was furnished to petitioner at his institutional mailing address. We conclude, however, that this circumstance is not sufficient to overcome petitioner’s sworn allegation that he did not timely receive a copy of the order, nor is it a sufficient basis to create a disputed issue of fact, such that an evidentiary hearing would be required. See Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998). Accordingly, the petition seeking a 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).
WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.
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Thorne v. Dep't OF Corr. & Fla. Parole Comm'n, 36 So. 3d 805 (Fla. 1st DCA 2010)…mmission’s proof as discussed above and the quantum of petitioner’s proof, especially documentation by the Department of Corrections that Thorne did not receive any communication from the Commission during the time in question. See Simmons v. State, 940 So. 2d 1250 (Fla. 1st DCA 2006). The petition for writ of certiorari is granted and the order of the circuit court denying Thorne’s mandamus petition is quashed. We remand to the circuit court with directions to grant the petition for writ of mandamus, orderin…
Authorities Cited
- Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)