Spivey v. State

827 So. 2d 390, 2002 Fla. App. LEXIS 14605, 2002 WL 31269492

Opinion

PER CURIAM.

Although a timely notice of appeal was originally filed, counsel of record faded to respond to this court’s order to pay the filing fee or obtain a certificate of indigen-cy. The result was dismissal of the direct appeal. This constitutes ineffective assistance of appellate counsel. Burnside v. State, 720 So.2d 269 (Fla. 5th DCA 1998); Johnson v. State, 719 So.2d 986 (Fla. 5th DCA 1998).

Accordingly, we grant Spivey’s petition, for a belated appeal and reinstate petitioner’s appeal in case number 5D02-716. We also relinquish jurisdiction to the trial court for thirty days to determine whether petitioner is entitled to be certified as an indigent or qualifies for court appointed counsel in case number 5D02-716.

Substitute counsel shall have 30 days thereafter within which to ensure transmittal of the record on appeal to this court and 30 days thereafter in .which to file the initial brief in case number 5D02-716.

Petition GRANTED; REINSTATE.

SHARP, W., PLEUS, and PALMER, JJ., concur.