Opinion
Case No. 97-1345
Opinion filed July 25, 1997
Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
Efrim Chappell, seeking a belated appeal, petitions this court for a writ of habeas corpus. He claims that his trial counsel failed to file a notice of appeal even though he had requested one. His trial counsel claims that no such request was ever made.
Both the public defender and the attorney general agree that this court should appoint a commissioner to resolve the factual dispute in the instant case. We reach the same conclusion, as the Committee Note (1996 Amendment) to Florida Rule of Appellate Procedure 9.140(j) calls for that procedure under the instant circumstances.
Accordingly, we appoint the trial court judge below, the Honorable Carol Engel Draper, as commissioner with directions to make findings of fact resolving the issue of whether Chappell timely requested his trial counsel to file a notice of appeal. These findings must be supported either by the results of an evidentiary hearing or by portions of the record. Judge Draper shall file a report with recommendations in this court no later than sixty (60) days from the date of this opinion. See Fla. R. App. P. 9.140(j) and accompanying Committee Note (1996 Amendment).See also Leath v. State, 22 Fla. L. Weekly D1378 (Fla. 4th DCA June 4, 1997) (on rehearing).
REMANDED WITH DIRECTIONS.
COBB, SHARP, W. and GOSHORN, JJ. concur.