McGhee v. State

District Court of Appeal of Florida

McGhee v. State

723 So. 2d 365, 1998 Fla. App. LEXIS 16292, 1998 WL 896403

CourtDistrict Court of Appeal of Florida

DecidedDecember 28, 1998

DocketNo. 98-943

StatusPublished

This text of 723 So. 2d 365 (McGhee v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGhee v. State, 723 So. 2d 365, 1998 Fla. App. LEXIS 16292, 1998 WL 896403 (Fla. Ct. App. 1998).

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Opinion

PER CURIAM.

Appellant seeks review of an order denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, requesting post-conviction relief. The trial court correctly determined that the motion conclusively demonstrated that appellant was entitled to no relief on the issues properly raised in the motion. Accordingly, we affirm the trial court’s order.

One of the issues raised by appellant was a request for a belated appeal. The trial court correctly denied that request because it lacked jurisdiction. Fla. R.App. P. 9.140(j). However, we treated the request as a petition for a belated appeal. Following the procedure outlined in Dubois v. State, 705 So.2d 713 (Fla. 1st DCA), review dismissed, 717 So.2d 538 (Fla.1998), we concluded that the petition was sufficient on its face, and we directed the state to show cause why a belated appeal should not be granted. The state’s response does not attempt to refute the factual representations made under oath by appellant. Accordingly, we grant the request for a belated appeal, and remand to the trial court. The clerk of the trial court shall treat this court’s mandate as the notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). If appellant qualifies for appointed counsel, the trial court shall appoint counsel to represent appellant.

AFFIRMED and REMANDED, with directions.

WOLF, WEBSTER and LAWRENCE, JJ., concur.

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PER CURIAM.

Appellant seeks review of an order denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, requesting post-conviction relief. The trial court correctly determined that the motion conclusively demonstrated that appellant was entitled to no relief on the issues properly raised in the motion. Accordingly, we affirm the trial court’s order.

One of the issues raised by appellant was a request for a belated appeal. The trial court correctly denied that request because it lacked jurisdiction. Fla. R.App. P. 9.140(j). However, we treated the request as a petition for a belated appeal. Following the procedure outlined in Dubois v. State, 705 So.2d 713 (Fla. 1st DCA), review dismissed, 717 So.2d 538 (Fla.1998), we concluded that the petition was sufficient on its face, and we directed the state to show cause why a belated appeal should not be granted. The state’s response does not attempt to refute the factual representations made under oath by appellant. Accordingly, we grant the request for a belated appeal, and remand to the trial court. The clerk of the trial court shall treat this court’s mandate as the notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). If appellant qualifies for appointed counsel, the trial court shall appoint counsel to represent appellant.

AFFIRMED and REMANDED, with directions.

WOLF, WEBSTER and LAWRENCE, JJ., concur.

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Bluebook (online)

723 So. 2d 365, 1998 Fla. App. LEXIS 16292, 1998 WL 896403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcghee-v-state-fladistctapp-1998.

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