Denson v. State, No. 98-385

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Parties23 Fla. L. Weekly D998 Dennis DENSON, Petitioner, v. STATE of Florida, Respondent.
Decision Date17 April 1998
Docket NumberNo. 98-385

Page 144

710 So.2d 144
23 Fla. L. Weekly D998
Dennis DENSON, Petitioner,
v.
STATE of Florida, Respondent.
No. 98-385.
District Court of Appeal of Florida,
Fifth District.
April 17, 1998.

Page 145

Dennis Denson, Bowling Green, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Petitioner Dennis Denson seeks a belated appeal, alleging that at sentencing he advised his trial attorney of his desire to appeal and the attorney agreed to file an appeal, but failed to do so. In response, the state points out that although petitioner makes the appropriate allegations, he has failed to present any affidavits or any supporting documentation. Therefore, the state "joins" petitioner in requesting that the issue be referred to the lower court for an evidentiary hearing.

Florida Rule of Appellate Procedure 9.140(j) now establishes the procedure for seeking a belated appeal. Rule 9.140(j)(2)(F) states that the petition shall include "the specific facts sworn to by the petitioner or petitioner's counsel that constitute the alleged ineffective assistance of counsel." The petition in this case is made under oath and the allegations are facially sufficient.

The Committee Notes to the rule provide that "[i]n the rare case where entitlement to belated appeal depends on a determination of disputed facts, the appellate court may appoint a commissioner to make a report and recommendation." The state requests that this court follow this recommended procedure, but the state does not specifically dispute petitioner's allegations. Instead, the state argues that, in the absence of a sworn affidavit from trial counsel or supporting documentation, an evidentiary hearing should be required. However, the rule does not require a petitioner to provide an affidavit from trial counsel. Instead, the state must dispute the petitioner's sworn claim, if not by affidavit, at least by specific allegations. In the absence of a disputed fact, the petition will be granted without an evidentiary hearing. However, because this is a new procedure, and evidentiary hearings have been ordered in some cases although facts have not been specifically disputed, in this case the state may file a supplemental response to the show cause order within 20 days of this opinion.

It is so ordered.

DAUKSCH, COBB and PETERSON, JJ. concur.

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18 practice notes
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • 27 Mayo 1999
    ...3d DCA 1998); Bridges, 518 So.2d at 300. The opinions of the Fifth District have not squarely addressed this issue. See Denson v. State, 710 So.2d 144, 145 (Fla. 5th DCA 1998) (finding petition for belated appeal sufficient if it alleges that the attorney failed to file the appeal as reques......
  • Thompkins v. State, No. 4D03-4757.
    • United States
    • Court of Appeal of Florida (US)
    • 30 Junio 2004
    ...Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998); Schubert v. State, 737 So.2d 1102, 1103 (Fla. 1st DCA 1998); Denson v. State, 710 So.2d 144, 145 (Fla. 5th DCA 1998). But see Oliver v. State, 834 So.2d 910, 911-12 (Fla. 5th DCA 2003) (suggesting that a state's allegation that defense ......
  • Hastings v. State, 5D22-0076
    • United States
    • Court of Appeal of Florida (US)
    • 18 Marzo 2022
    ...has stated that the burden shifts to the State to specifically dispute the 2 petitioner's allegations. See generally Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998). If the State raises a good faith basis to dispute the petitioner's claims through affidavit or specific contrary allegatio......
  • Reese v. State, No. 98-2346.
    • United States
    • Court of Appeal of Florida (US)
    • 14 Octubre 1998
    ...See e.g., Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998); Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998); Demon v. State, 710 So.2d 144 (Fla. 5th DCA We agree. Absent a showing in the state's response of a good faith basis for opposing a facially sufficient petition, belated a......
  • Request a trial to view additional results
18 cases
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • 27 Mayo 1999
    ...3d DCA 1998); Bridges, 518 So.2d at 300. The opinions of the Fifth District have not squarely addressed this issue. See Denson v. State, 710 So.2d 144, 145 (Fla. 5th DCA 1998) (finding petition for belated appeal sufficient if it alleges that the attorney failed to file the appeal as reques......
  • Thompkins v. State, No. 4D03-4757.
    • United States
    • Court of Appeal of Florida (US)
    • 30 Junio 2004
    ...Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998); Schubert v. State, 737 So.2d 1102, 1103 (Fla. 1st DCA 1998); Denson v. State, 710 So.2d 144, 145 (Fla. 5th DCA 1998). But see Oliver v. State, 834 So.2d 910, 911-12 (Fla. 5th DCA 2003) (suggesting that a state's allegation that defense ......
  • Hastings v. State, 5D22-0076
    • United States
    • Court of Appeal of Florida (US)
    • 18 Marzo 2022
    ...has stated that the burden shifts to the State to specifically dispute the 2 petitioner's allegations. See generally Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998). If the State raises a good faith basis to dispute the petitioner's claims through affidavit or specific contrary allegatio......
  • Reese v. State, No. 98-2346.
    • United States
    • Court of Appeal of Florida (US)
    • 14 Octubre 1998
    ...See e.g., Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998); Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998); Demon v. State, 710 So.2d 144 (Fla. 5th DCA We agree. Absent a showing in the state's response of a good faith basis for opposing a facially sufficient petition, belated a......
  • Request a trial to view additional results

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