Latimore v. State , 696 So. 2d 1290 ( 1997 )

696 So. 2d 1290 (1997)

James LATIMORE, Petitioner,
v.
STATE of Florida, Ron Cochran, as Sheriff of Broward County Florida and The Honorable Richard D. Eade, Circuit Court Judge of the 17th Judicial Circuit, In and For Broward County, Florida, Respondents.

No. 97-1396.

District Court of Appeal of Florida, Fourth District.

July 16, 1997.

Barbara J. Brush, Fort Lauderdale, for petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and Denise M. Mitchell, Assistant Attorney General, West Palm Beach, for respondents.

PER CURIAM.

Petitioner seeks a belated appeal from his conviction and sentence based on the public defender's allegation that a notice of appeal was timely filed, but was never docketed by the clerk of the circuit court. The state agrees that no appeal was ever docketed, but questions whether the notice was really filed.

There is no need to resolve the factual dispute, because either way, petitioner's right to appeal has been frustrated by state action. He is therefore entitled to a belated appeal. Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993)(belated appeal granted where counsel failed to timely file notice of appeal); Showers v. State, 359 So. 2d 928 (Fla. 2d DCA 1978)(belated appeal permitted where appeal was not docketed).

The petition is hereby granted. As provided by Florida Rule of Appellate Procedure 9.140(j)(5)(D), this Court's opinion and mandate shall be filed with the lower tribunal and treated as the notice of appeal.

GLICKSTEIN, GUNTHER and WARNER, JJ., concur.