McClain v. Moore

775 So. 2d 1003, 2001 WL 20784

• Court: District Court of Appeal of Florida
• Decided: January 10, 2001
• Docket: 1D00-4028
• Status: Published

Opinion

775 So.2d 1003 (2001)

Corey McCLAIN, Petitioner,
v.
Michael W. MOORE, Secretary, Florida Department of Corrections and State of Florida, Respondents.

No. 1D00-4028.

District Court of Appeal of Florida, First District.

January 10, 2001.

Corey McClain, pro se, petitioner.

Robert A. Butterworth, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for respondents.

PER CURIAM.

Appointed counsel's failure to respond to this court's order to show cause why the appeal should not be dismissed for failure to file an initial brief caused petitioner's direct appeal to be dismissed. Therefore, the petition for writ of habeas corpus for belated appeal due to ineffective assistance of appellate counsel is granted. Johnson v. State, 719 So.2d 986 (Fla. 5th DCA 1998); Rooney v. State, 632 So.2d 212 (Fla. 5th DCA 1994).

Accordingly, we grant the petition, reinstate petitioner's appeal in this court's case number 1D99-1207 and relinquish jurisdiction to the lower court for a period of 30 days to appoint substitute appellate counsel in that proceeding. Substitute counsel shall have 30 days from the date of appointment by the lower court within which to ensure transmittal of the record on appeal to this court and 30 days thereafter in which to file appellant's initial brief.

PETITION GRANTED.

ERVIN, BOOTH and KAHN, JJ., concur.