Brock v. State

947 So. 2d 1190, 2007 WL 162171

• Court: District Court of Appeal of Florida
• Decided: January 24, 2007
• Docket: 1D06-3998
• Status: Published

Opinion

947 So.2d 1190 (2007)

Richard Earl BROCK, Petitioner,
v.
STATE of Florida, Respondent.

No. 1D06-3998.

District Court of Appeal of Florida, First District.

January 24, 2007.

Richard Earl Brock, pro se, Petitioner.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.

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. R.App. P. 9.141(c)(5)(D).

PETITION FOR BELATED APPEAL GRANTED.

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.