Morgan v. Singletary

669 So. 2d 1126, 1996 Fla. App. LEXIS 2845, 1996 WL 120971

Opinion

PER CURIAM.

We grant this petition for writ of habeas corpus and allow petitioner 30 days from the date of this opinion in which to file his notice of appeal from the trial court’s January 18, 1995 order denying his rule 3.850 motion. The petitioner established that he did not receive a copy of the order denying relief from the trial court until well after the time for filing an appeal had passed. Kohler v. Sandstrom, 305 So.2d 76, 77-78 (Fla. 3d DCA 1974) (burden of proof in a habeas corpus proceeding is on the petitioner, who must back up his allegations with evidence), cert. denied, 311 So.2d 669 (Fla.), cert. denied, 423 U.S. 934, 96 S.Ct. 289, 46 L.Ed.2d 264 (1975). See also Nava v. State, 652 So.2d 1264 (Fla. 4th DCA 1995) (there is no time limit for seeking to file a belated appeal unless the state claims to have been prejudiced by the delay).

Accordingly, the petition for writ of habeas corpus is GRANTED.

FARMER, KLEIN, and STEVENSON, JJ., concur.