Johnson v. State

Full title: Howard Russell JOHNSON, Petitioner, v. STATE of Florida, Appellee

Court: District Court of Appeal of Florida, Fifth District

Date published: Oct 23, 1998

719 So. 2d 986 (Fla. Dist. Ct. App. 1998)

Opinion

No. 98-1930.

October 23, 1998.

Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

Howard Russell Johnson, Malone, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Lori E. Nelson, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Counsel's failure to respond to this court's order to show cause why the appeal should not be dismissed for failure to file an initial brief caused petitioner's appeal to be dismissed. Therefore, the petition for writ of habeas corpus for belated appeal due to ineffective assistance of appellate counsel is granted. Rooney v. State, 632 So.2d 212 (Fla. 5th DCA 1994); see Melbourne v. State, 635 So.2d 163 (Fla. 5th DCA 1994).

As we did in Rooney and Melbourne, we grant the petition, reinstate petitioner Johnson's appeal in this court's case No. 97-2094, and relinquish jurisdiction to the lower court for a period of thirty days to appoint substitute appellate counsel in that proceeding. Substitute counsel shall have thirty days from the date of appointment by the lower court within which to file appellant's initial brief.

PETITION GRANTED.

W. SHARP, THOMPSON and ANTOON, JJ., concur.