Simmons v. State

940 So. 2d 1250 (2006)

Ricky E. SIMMONS, Petitioner,
v.
STATE of Florida, Respondent.

No. 1D06-2516.

District Court of Appeal of Florida, First District.

November 3, 2006.

Ricky E. Simmons, pro se, Petitioner.

Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

By timely petition, Ricky E. Simmons seeks a belated appeal of an October 15, 2004, order denying his motion for postconviction relief in Bay County Circuit Court case number 99-1800. He alleges in his sworn petition that in spite of his filing of numerous notices of inquiry concerning the status of his motion, he did not receive a copy of the order of denial until February 2006.

In response to an order to show cause, the state contends that a belated appeal should not be granted because the trial court's order reflects that a copy thereof was furnished to petitioner at his institutional mailing address. We conclude, however, that this circumstance is not sufficient to overcome petitioner's sworn allegation that he did not timely receive a copy of the order, nor is it a sufficient basis to create a disputed issue of fact, such that an evidentiary hearing would be required. See Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998). Accordingly, the petition seeking a belated appeal is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.