Thomas v. State , 905 So. 2d 1037 ( 2005 )

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905 So. 2d 1037 (2005)
Oscar THOMAS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D05-258.
District Court of Appeal of Florida, Fifth District.
July 8, 2005.
Oscar Thomas, pro se.

No Appearance for Appellee.

PER CURIAM.

Defendant, Oscar Thomas, seeks to appeal the denial of his Rule 3.850 motion. This court entered a show cause order why his appeal should not be dismissed because his notice of appeal was untimely. Defendant responds he had filed an earlier, timely notice which was "overlooked" by the clerk; however, he provides no documentation to support his assertion. Consequently, this appeal must be dismissed as untimely. This dismissal is without prejudice to file a petition for belated appeal which is under oath and complies with Florida Rule of Appellate Procedure 9.141(c). Although the rule does not require it, if he also provides documentation to establish that he had filed an earlier, timely notice which was overlooked due to the state's actions, it would facilitate his appeal. See Latimore v. State, 696 So. 2d 1290 (Fla. 4th DCA 1997) (stating defendant entitled to belated appeal when his right to appeal *1038 has been frustrated by the circuit court clerk's "state action").

DISMISSED without prejudice.

SHARP, W., THOMPSON and TORPY, J.J., concur.