Wessells v. State, 97-2989.
| Decision Date | 15 June 1998 |
| Docket Number | No. 97-2989.,97-2989. |
| Citation | 737 So.2d 1103 |
| Parties | Bryce Page WESSELLS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
ON MOTION FOR REHEARING
Upon consideration of the motion for rehearing filed by the State of Florida, we grant rehearing and withdraw the opinion filed April 2, 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issues of fact concerning whether petitioner made a timely request to his trial counsel to file a notice of appeal, by unpublished order rendered this date, we relinquish jurisdiction to the circuit court for appointment of a special master to serve as a commissioner for this court to make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, petitioner, Bryce Page Wessells, 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. In its brief, 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. Originally, the state failed to present a good faith factual basis for opposing the relief requested by petitioner, and we therefore issued our original opinion granting a belated appeal.
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 v. State, 705 So.2d 713 (Fla 1st DCA 1998), and Hammond v. State, 706 So.2d 73 (Fla. 1st DCA 1998), that the state must allege a good faith basis for disputing the factual allegations in the petition for belated appeal before this court will order an evidentiary hearing. However, this requirement did not exist when the...
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In re Amendments to Rules of Jud. Admin., SC05-173.
...within the scope of courts' jurisdiction, including the appointment of a commissioner to make findings of fact); Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998) (relinquishing jurisdiction to circuit court for appointment of a special master to serve as commissioner for court to make ......
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Amendments to Rules of Jud. Admin.—Reorg., SC05-1588.
...within the scope of courts' jurisdiction, including the appointment of a commissioner to make findings of fact); Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998) (relinquishing jurisdiction to circuit court for appointment of a special master to serve as commissioner for court to make ......
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Wiggins v. State, 99-2210.
...The State's response failed to present a good-faith factual basis for opposing the relief requested by the appellant. Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998) (on mot. for reh'g); Schubert, 737 So.2d at 1102 n. We grant the request for a belated appeal and remand to the trial c......
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Thompkins v. State, 4D03-4757.
...Reese v. State, 743 So.2d 1104 (Fla. 4th DCA 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 Ol......