Hubbard v. State

631 So. 2d 352, 1994 Fla. App. LEXIS 610, 1994 WL 28854

Opinions

GRIFFIN, Judge.

Appellant seeks review of the summary denial of his Rule 3.850 Motion for Post-Conviction Relief. We agree with the lower court’s denial on grounds I and III; however, we disagree as to ground II.

Appellant’s initial motion alleges that he advised counsel of his desire to appeal but that he had need of appointed counsel. He alleges, and the record reflects, that on November 12, 1991, the court entered its order declaring appellant to be insolvent and appointing the Office of the Public Defender to represent the appellant. The record further reflects that the notice of appeal, which was filed on November 15, 1991, was dated November 13, 1991. November 13, 1991 was the last day on which an appeal could have been timely filed. Appellant further alleged that “Although Counsel informed Petitioner that he would file said notice of appeal, and had it recorded as being done on the 13th day of November, 1991, the District Court of the Fifth District Court of Appeal dismissed the Petitioner’s appeal in its Order dated December 30, 1992.” These allegations are sufficient to entitle appellant to an evidentiary hearing. Joseph v. State, 451 So.2d 886 (Fla. 5th DCA 1984).

AFFIRMED in part; REVERSED in part; and REMANDED.

W. SHARP, J., concurs. GOSHORN, J., dissents with opinion.