FREDRICK JOHNSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court granted Johnson's petition for a belated appeal of an order denying post-conviction relief, holding that the appellate court has jurisdiction under Florida Rule of Appellate Procedure 9.141(c) to permit late notice of appeal when counsel inadvertently failed to file timely.
An appellate court has jurisdiction to grant a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c) when postconviction counsel inadvertently fails to file a timely notice of appeal.
[1] An appellate court has jurisdiction to grant a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c) when counsel inadvertently fails to file a timely n…
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Join FLexlaw to unlock all legal intelligenceJohnson sought a belated appeal of an order denying his motion for post-conviction relief. His postconviction counsel inadvertently failed to file a t…
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PER CURIAM.
Fredrick Johnson seeks a belated appeal of an order denying his motion for post-conviction relief following an evidentiary hearing. The petition shows that although Johnson made a request to initiate an appeal, his postconviction counsel inadvertently failed to file a timely notice of appeal. The state indicates that in light of the representations by Johnson’s counsel, it has no objection to the granting of a belated appeal in this matter.
We note that although Johnson could have sought this relief by a petition for writ of habeas corpus in the trial court pursuant to Williams v. State, 777 So. 2d 947 (Fla.2000), we agree with the conclusion of the court in Demana v. State, 814 So. 2d 444 (Fla.2d DCA 2001), that the appropriate appellate court also has jurisdiction to grant a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).
Accordingly, the petition for belated appeal of the lower tribunal’s order of October 28, 2001, denying Johnson’s motion for postconviction relief in Alachua County Circuit Court case number 1995-00047-CF-B, 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. RApp. P. 9.141(c)(5)(D).
KAHN, VAN NORTWICK and LEWIS, JJ., concur.
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Citator
Cited By
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Ashley v. State, 845 So. 2d 1008 (Fla. 5th DCA 2003)…the thirty day time period had expired or it was otherwise practically impossible to make a timely filing. Relief might also be appropriate by filing a petition for habeas corpus to seek a belated appeal pursuant to Rule 9.141. See Johnson v. State, 813 So. 2d 230 (Fla. 1st DCA 2002); Green v. State, 804 So. 2d 474 (Fla. 5th DCA 2002); Crocton v. State, 743 So. 2d 1188 (Fla. 5th DCA 1999); Richardson v. State, 624 So. 2d 804 (Fla. 1st DCA 1993). Based on this record we have no recourse but to dismiss Ashley’…
Authorities Cited
- Lynwood Williams v. State, 777 So. 2d 947 (Fla. 2000)
- Demaria v. State, 814 So. 2d 444 (Fla. 2d DCA 2001)