Schubert v. State, No. 97-3964.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation737 So.2d 1102
PartiesMichael SCHUBERT, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. 97-3964.
Decision Date03 June 1998

737 So.2d 1102

Michael SCHUBERT, Petitioner,
v.
STATE of Florida, Respondent

No. 97-3964.

District Court of Appeal of Florida, First District.

June 3, 1998.


Michael Roger Schubert, pro se, petitioner.

Robert A. Butterworth, Attorney General; and Trina Kramer, Assistant Attorney General, Tallahassee, for respondent.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of the motion for rehearing filed by the State of Florida, we grant rehearing and withdraw the opinion filed March 31, 1998, and substitute this opinion. Because there are disputed issues of fact concerning whether petitioner made a timely request to his trial counsel to file a notice of appeal, by unpublished order rendered this date, we relinquish jurisdiction to the circuit court for appointment of a special master to serve as a commissioner for this court to make findings of fact to resolve this issue.

In his sworn petition for belated appeal and supplemental affidavit, petitioner Michael Schubert stated that he timely instructed his trial counsel to file a notice of appeal, but his trial counsel failed to file the notice. The allegations of that petition were facially sufficient to justify the grant of a belated appeal, if not disputed. This court issued an order to show cause. In response to that order, the state argued that an evidentiary hearing is necessary to determine whether trial counsel was ineffective in failing to timely file a notice of appeal. The state failed to present a good faith factual basis for opposing the relief requested by petitioner, and we therefore issued our original opinion explaining that when the petitioner's entitlement to a belated appeal does not depend on a determination of disputed facts, it is unnecessary for this court to appoint a commissioner to make a report and recommendation. See Hammond v. State, 706 So.2d 73 (Fla. 1st DCA 1998); Dubois v. State, 705 So.2d 713 (Fla. 1st DCA 1998).1

737 So.2d 1103
Florida Rule of Appellate Procedure 9.140(j), created a new procedure for filing original petitions for belated appeal directly in this court. That procedure has been inconsistently applied, as our sister court noted in Denson v. State, 710 So.2d 144 (Fla. 5th DCA 1998). Some petitioners were granted belated appeals based solely upon the fact that there were no disputed issues of fact, while others have been required to establish entitlement to the belated appeal in evidentiary proceedings. Id. We explained in Dubois, supra, and ...

To continue reading

Request your trial
20 practice notes
  • Brooks v. State, No. 1D00-2694.
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 2002
    ...denied that petitioner had requested that he file a notice of appeal. As is our practice in such cases, see, e.g., Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998), we relinquished jurisdiction to the trial court, directing the chief judge to appoint a special master to receive evidenc......
  • Wiggins v. State, No. 99-2210.
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1999
    ...after Wiggins timely requested him to do so. This constitutes a colorable claim of ineffective assistance of counsel. Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998); Hammond v. State, 706 So.2d 73 (Fla. 1st DCA 1998); Dubois; Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992). Never......
  • Thompkins v. State, No. 4D03-4757.
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 2004
    ...1998). See also State v. Trowell, 739 So.2d 77, 81 (Fla.1999); 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. 5t......
  • Hastings v. State, 5D22-0076
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 2022
    ...good faith dispute. We concede that counsel's representation in this case falls short of the affirmative statement in Schubert v. State, 737 So.2d 1102, 1103 (Fla. 1st DCA 1998). However, we do not believe the State's response needs to be so conclusive to demonstrate a good faith dispute. I......
  • Request a trial to view additional results
20 cases
  • Brooks v. State, No. 1D00-2694.
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 2002
    ...denied that petitioner had requested that he file a notice of appeal. As is our practice in such cases, see, e.g., Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998), we relinquished jurisdiction to the trial court, directing the chief judge to appoint a special master to receive evidenc......
  • Wiggins v. State, No. 99-2210.
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1999
    ...after Wiggins timely requested him to do so. This constitutes a colorable claim of ineffective assistance of counsel. Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998); Hammond v. State, 706 So.2d 73 (Fla. 1st DCA 1998); Dubois; Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992). Never......
  • Thompkins v. State, No. 4D03-4757.
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 2004
    ...1998). See also State v. Trowell, 739 So.2d 77, 81 (Fla.1999); 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. 5t......
  • Hastings v. State, 5D22-0076
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 2022
    ...good faith dispute. We concede that counsel's representation in this case falls short of the affirmative statement in Schubert v. State, 737 So.2d 1102, 1103 (Fla. 1st DCA 1998). However, we do not believe the State's response needs to be so conclusive to demonstrate a good faith dispute. I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT