5D02-2475 Spivey v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2475

Case Date: 10/07/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

REGINALD SPIVEY, Petitioner, v. STATE OF FLORIDA, Respondent. ______________________________/ Opinion filed October 11, 2002 Petition Alleging Ineffectiveness of Appellate Counsel. A Case of Original Jurisdiction. Reginald Spivey, Jasper, pro se. Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Respondent. PER CURIAM. Although a timely notice of appeal was originally filed, counsel of record failed to respond to this court's order to pay the filing fee or obtain a certificate of indigency. The result was dismissal of the direct appeal. This constitutes ineffective assistance of appellate counsel. Burnside v. State, 720 So. 2d 269 (Fla. 5th DCA 1998); Johnson v. State, 719 So. 2d 986 (Fla. 5th DCA 1998). Accordingly, we grant Spivey's petition, for a belated appeal and reinstate petitioner's appeal in case number 5D02-716. We also relinquish jurisdiction to the trial court for thirty days to determine CASE NO. 5D02-2475

whether petitioner is entitled to be certified as an indigent or qualifies for court appointed counsel in case number 5D02-716. Substitute counsel shall have 30 days thereafter within which to ensure transmittal of the record on appeal to this court and 30 days thereafter in which to file the initial brief in case number 5D02-716. Petition GRANTED; REINSTATE.

SHARP, W., PLEUS, and PALMER, JJ., concur.

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