Hammond v. State

706 So. 2d 73 (1998)

Randell W. HAMMOND, Appellant,
v.
STATE of Florida, Appellee.

No. 97-1171.

District Court of Appeal of Florida, First District.

February 17, 1998.

Randell W. Hammond, Appellant, pro se.

No appearance for Appellee.

PER CURIAM.

The defendant, Randell W. Hammond, appeals the denial of his motion for postconviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. He claims in his sworn motion that he received ineffective assistance of counsel because his attorney failed to honor his timely request to file a notice of appeal. The trial court summarily denied the motion, concluding that the defendant had forfeited his right to appeal by pleading nolo contendere without reservation. We treated the defendant's facially sufficient motion as a petition under rule 9.140(j) of the Florida Rules of Appellate Procedure and issued an order to show cause why the requested relief should not be granted. The state filed a response to our order but has not offered any evidence to refute the defendant's sworn allegation that he timely asked his attorney to file an appeal on his behalf.

We conclude that the trial court's reasons for denying the defendant's motion were insufficient, see Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998), and that the defendant has a right to a belated appeal. Accordingly, we grant the petition and remand the case to the trial court. Within thirty days of the mandate, trial counsel shall file a notice of appeal as required by rule 9.140(b)(5). If the defendant qualifies for appointed counsel, the trial court shall appoint counsel for the defendant on appeal.

WEBSTER, MICKLE and PADOVANO, JJ., concur.