Dailey v. State

District Court of Appeal of Florida

Dailey v. State

763 So. 2d 1264, 2000 Fla. App. LEXIS 8447, 2000 WL 889852

District Court of Appeal of Florida·Decided July 6, 2000·No. No. 1D00-58·Published·Cited by 1 cases

Opinion

PER CURIAM.

Daniel R. Dailey seeks a belated appeal from his judgment and sentence, contending that his trial counsel failed to honor his timely request that a notice of appeal be filed on his behalf. We asked the state to respond and it did so, providing this court with trial counsel’s affidavit wherein it was stated that Dailey did not ask for an appeal. We relinquished jurisdiction for an evidentiary hearing. Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). A circuit judge was appointed to conduct the hearing and issue a written recommendation and this has been done. The judge resolved this factual dispute in favor of petitioner and the respondent has not sought to contest the findings.

Accordingly, we grant the petition and award Daniel R. Dailey a belated appeal from judgment and sentence in Escambia County case number 98-1117. Upon issuance of mandate in the cause, a copy of this opinion shall be provided to the clerk of the trial court for treatment as a notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). If Dailey qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

PETITION GRANTED.

ALLEN, LAWRENCE and BENTON, JJ., concur.

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PER CURIAM.

Daniel R. Dailey seeks a belated appeal from his judgment and sentence, contending that his trial counsel failed to honor his timely request that a notice of appeal be filed on his behalf. We asked the state to respond and it did so, providing this court with trial counsel’s affidavit wherein it was stated that Dailey did not ask for an appeal. We relinquished jurisdiction for an evidentiary hearing. Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). A circuit judge was appointed to conduct the hearing and issue a written recommendation and this has been done. The judge resolved this factual dispute in favor of petitioner and the respondent has not sought to contest the findings.

Accordingly, we grant the petition and award Daniel R. Dailey a belated appeal from judgment and sentence in Escambia County case number 98-1117. Upon issuance of mandate in the cause, a copy of this opinion shall be provided to the clerk of the trial court for treatment as a notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). If Dailey qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

PETITION GRANTED.

ALLEN, LAWRENCE and BENTON, JJ., concur.

Dailey v. State, 763 So. 2d 1264, 2000 Fla. App. LEXIS 8447, 2000 WL 889852 (Fla. Ct. App. 2000).

Pincite

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Opinion

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