Opinion
Case No. 5D01-1282
Opinion filed July 13, 2001
Petition for Belated Appeal, A Case of Original Jurisdiction.
Darrin Godwin, Quincy, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
Godwin had filed a petition for writ of habeas corpus seeking a belated appeal of an order of the trial court which denied his motion filed pursuant to Rule 3.850. The court denied four of Godwin's five claims on October 3, 2000, and appointed an attorney to represent him on the first claim. On March 21, 2001, the trial court denied the first ground also.
Godwin asserts he did not learn of the denial of the first claim until April 23, 2001, when his attorney informed him in response to his inquiry, and by that time it was too late to bring an appeal. The state asserts that Godwin received legal mail from the Clerk of the Circuit Court on April 5, 2001, and suggests without any supporting documentation it was the denial order. However, this does not resolve the factual dispute of whether or not Godwin actually received a copy of the order denying the first claim of his motion and, if so, whether or not he received it in time to bring a timely appeal.
Since the state's response does not resolve the factual dispute, we appoint the trial court as a commissioner of this court to resolve these questions. See Denton v. State, 710 So.2d 144 (Fla. 5th DCA 1998).
PETERSON and PALMER, JJ., concur.