5D05-2661 William Cosby v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2661

Case Date: 09/26/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

WILLIAM D. COSBY, Petitioner, v. STATE OF FLORIDA, Respondent. ________________________________/ Opinion filed September 30, 2005 Petition for Belated Appeal, A Case of Original Jurisdiction. William D. Cosby, Sanderson, pro se. Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent. Case No. 5D05-2661 CORRECTED

SHARP, W., J. Cosby seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c), claiming that his trial counsel failed to file a notice of appeal in his criminal case, 02-CF-2531, after being requested to do so. We deny the petition because it was not sworn to by Cosby, as required by law. See Fla. R. App. P. 9.141(C)(3)(f); Brooks v. State, 816 So. 2d 199 (Fla. 1st DCA 2002); Ezell v. State, 778 So. 2d 1071 (Fla. 5th DCA 2001). A petition for belated appeal must state specific facts which establish prima facie denial of effective assistance of counsel and it must be sworn to. Cosby attached to his

petition an "affidavit of facts," which set forth some facts and concluded that he read the facts and they are true under penalty of perjury. This would be sufficient if all of the facts relied upon were contained in the affidavit and the petition incorporated it by reference. Compare, Gonzalez v. State, 869 So. 2d 775 (Fla. 5th DCA 2004) (sworn Rule 3.850 motion did not contain facts; unsworn memorandum of law attached to motion which stated facts insufficient to cure motion). However, in this case, the petition itself contains other facts not present in the "affidavit," and it is not executed under oath or its equivalent. Accordingly, we deny the petition without prejudice to Cosby to refile a properly sworn petition. Petition for Belated Appeal DENIED.

THOMPSON and PALMER, JJ., concur.

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