Opinion
No. 1D10-2107.
October 6, 2010.
Petition Seeking Belated Appeal — Original Jurisdiction.
Nathaniel Carswell, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
Nathaniel Carswell seeks a belated appeal of a December 2008 judgment and sentence of the circuit court. He alleged in his sworn petition and testified at an evidentiary hearing before a special master that after being sentenced and while still in the county jail awaiting transfer to DOC, he sent a timely letter to his trial counsel requesting an appeal, but one was not initiated. At the evidentiary hearing, trial counsel testified that he did not receive any correspondence from petitioner requesting an appeal. The special master found counsel's testimony in this regard to be credible, and thus concluded that counsel did not receive a letter requesting an appeal, nor did petitioner send such a letter.
While the special master's finding that counsel did not receive a letter requesting an appeal is supported by competent substantial evidence, that finding is not dispositive since if such a letter was properly mailed, counsel's failure to receive and act on it would in itself warrant the granting of a belated appeal. See Rumph v. State, 746 So.2d 1249 (Fla. 1st DCA 1999); see also Brock v. State, 947 So.2d 1190 (Fla. 1st DCA 2007). The special master's amended report and recommendation fails to identify any evidence refuting petitioner's sworn testimony that he timely mailed the letter, nor does it articulate a basis for disregarding that testimony. Accordingly, consistent with our decisions in Rumph and Brock, the petition seeking a belated appeal of the judgment and sentence rendered on or about December 17, 2008, in Clay County Circuit Court case number 2008-CF-000939, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the circuit court for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the circuit court shall appoint counsel to represent him on appeal.
PETITION SEEKING BELATED APPEAL GRANTED.
WOLF, ROBERTS, and WETHERELL, JJ., concur.