JOHNSON v. STATE (2002)

Fredrick Johnson seeks a belated appeal of an order denying his motion for postconviction relief following an evidentiary hearing.   The petition shows that although Johnson made a request to initiate an appeal, his postconviction counsel inadvertently failed to file a timely notice of appeal.   The state indicates that in light of the representations by Johnson's counsel, it has no objection to the granting of a belated appeal in this matter.

We note that although Johnson could have sought this relief by a petition for writ of habeas corpus in the trial court pursuant to Williams v. State, 777 So.2d 947 (Fla.2000), we agree with the conclusion of the court in Demaria v. State, 814 So.2d 444 (Fla. 2d DCA 2001), that the appropriate appellate court also has jurisdiction to grant a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).  Accordingly, the petition for belated appeal of the lower tribunal's order of October 23, 2001, denying Johnson's motion for postconviction relief in Alachua County Circuit Court case number 1995-00047-CF-B, 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).

PER CURIAM.

KAHN, VAN NORTWICK and LEWIS, JJ., concur.