RICHARD EARL BROCK, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a petitioner is entitled to a belated appeal when an exceptional circumstance, such as a timely mailed letter to counsel being lost, prevents the filing of a timely appeal.
[1] A belated appeal may be granted when a timely letter requesting an appeal does not reach counsel, constituting an exceptional circumstance.
[2] An evidentiary hearing on a petition for belated appeal is not required if the state fails to establish a good faith basis for disputing the petitioner's sworn allegation…
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Join FLexlaw to unlock all legal intelligenceRichard Earl Brock sought a belated appeal after his motion for postconviction relief was denied. He alleged he mailed a letter to his counsel request…
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PER CURIAM.
By timely petition, Richard Earl Brock seeks a belated appeal of a June 8, 2006, order denying his motion for postconviction relief after evidentiary hearing. He alleges that upon receipt of the trial court’s order, he timely mailed a letter to his counsel of record requesting that she file a notice of appeal. In response to his subsequent notice of inquiry, however, the circuit court clerk informed Brock that a notice of appeal had not been filed.
The state opposes the petition for belated appeal, relying on an affidavit of Brock’s counsel stating that she has no record of receiving Brock’s letter requesting that an appeal be initiated. Based on counsel’s affidavit, the state asserts that the petition for belated appeal should be denied inasmuch as counsel denies being requested to file an appeal, or in the alternative, an evidentiary hearing should be conducted.
We conclude that Brock is entitled to a belated appeal, and that there is no need for an evidentiary hearing. If Brock’s timely letter did not reach counsel, this exceptional circumstance is sufficient to warrant the granting of a belated appeal. See Rumph v. State, 746 So. 2d 1249 (Fla. 1st DCA 1999). An evidentiary hearing would be required only if the state established a good faith basis for disputing Brock’s sworn allegation that he timely mailed the letter requesting an appeal. See Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998). The state has not done so, and Brock is therefore entitled to the relief he seeks.
Accordingly, the petition seeking a belated appeal of the June 8, 2006, order denying Brock’s motion for postconviction relief in Escambia County Circuit Court case numbers 1996-CF-001141A, 1996-CF-004898A, 1996-CF-004899A, 1996-CF-005065A, and 2002-CF-002589A, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D).
PETITION FOR BELATED APPEAL GRANTED.
VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Robinson v. State, 43 So. 3d 821 (Fla. 1st DCA 2010)…ndation, the petition seeking a belated appeal of the order rendered on or about September 14, 2009, denying petitioner’s motion for post-conviction relief in Escambia County Circuit Court ease number 2004-CF-002690A, is granted. See Brock v. State, 947 So. 2d 1190 (Fla. 1st DCA 2007). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). THOMAS, WETHEREL…
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Carswell v. State, 46 So. 3d 99 (Fla. 1st DCA 2010)…ng is not dis-positive since if such a letter was properly mailed, counsel’s failure to receive and act on it would in itself warrant the granting of a belated appeal. See Rumph v. State, 746 So. 2d 1249 (Fla. 1st DCA 1999); see also Brock v. State, 947 So. 2d 1190 (Fla. 1st DCA 2007). The special master’s amended report and recommendation fails to identify any evidence refuting petitioner’s sworn testimony that he timely mailed the letter, nor does it articulate a basis for disregarding that testimony. Accord…
Authorities Cited
- Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)
- Elton Rumph v. State, 746 So. 2d 1249 (Fla. 1st DCA 1999)