Rudolph v. Wainwright

238 So. 2d 455

Opinion

MANN, Judge.

The record at the time of Rudolph’s guilty plea was inadequate to show volun-tariness, so we reversed summary denial of his post-conviction petition. Rudolph v. State, Fla.App.1970, 230 So.2d 14. The record of the evidentiary hearing held thereafter does not refute Rudolph’s claim that he was not given notice of the denial of his petition in time to appeal. Respondent concedes in his response to this petition for habeas corpus that he cannot refute this allegation and questions whether further hearing would be useful. We agree. See Cappetta v. Wainwright, Fla.1967, 203 So.2d 609.

Accordingly, we issue the writ to afford appellate review in the manner provided in Baggett v. Wainwright, Fla.1969, 229 So.2d 239.

HOBSON, C. J., and LILES, J., concur.