Barnes v. State

387 So. 2d 970, 1980 Fla. App. LEXIS 15685

Opinion

DAUKSCH, Chief Judge.

This is an appeal from an order denying post conviction relief prayed for under Rule 3.850, Florida Rules of Criminal Procedure. The petition filed below is legally insufficient on its face and therefore the trial court properly denied it, even if for the wrong reason.¹

Because among his various allegations the petitioner alleged in his petition below that he was denied an appeal by state action, he may have properly sought another remedy by following the procedures allowed under Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882.

In order to determine whether this appellant was denied his right to appeal, we appoint Honorable Richard B. Keating, Circuit Judge of the Ninth Judicial Circuit, as Commissioner of this court to hold a hearing for the presentation of evidence in that regard. At the conclusion of the hearing, the Commissioner is requested to make his findings of fact and file his report with this court. Jurisdiction of this matter is relinquished and this cause is remanded for a period of thirty days in order that the foregoing may be accomplished.

COBB, J., concurs. CROSS, J., concurs only in conclusion.

1 . “Adjudged that the said Motion for Post Conviction Relief is hereby denied, this Court being without jurisdiction to consider such a motion." There is nothing in the record before us to show the trial court lacked jurisdiction.