District Court of Appeal of Florida, Fifth District.
Steven D. Lewis, Crawfordville, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Respondent.
PETERSON, Judge.
Steven D. Lewis seeks a belated appeal. Lewis states under oath that he had expressed a desire to appeal at sentencing, and that he is indigent. Lewis further represents that a notice of appeal has never been filed and that he was never contacted by the *1030 public defender. The State does not dispute any of the allegations, but argues that Lewis' petition should be denied for legal insufficiency because it failed to state the name of his trial attorney and whether he asked the trial attorney to file an appeal.
When factual assertions in a sworn petition are not disputed by the state, a petition for belated appeal will be granted without an evidentiary hearing. Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). Here the state does not affirmatively deny that Lewis expressed his desire to appeal at sentencing, but rather, attacks the sufficiency of Lewis' petition because of the omission of the name of the defense counsel. We disagree that the omission is fatal to the petition when the state can easily obtain the name by contacting the clerk's office of the court where Lewis was tried.
The petition for belated appeal is granted. Upon the filing hereof, the lower tribunal shall treat this order as the notice of appeal. See Fla. R.App. P. 9.140(j)(5)(D). The record is unclear as to whether Lewis has been declared indigent. It is his responsibility to establish his indigency in order to obtain assistance from the public defender. See Fla. R.App. P. 9.430.
PETITION GRANTED.
W. SHARP and ANTOON, JJ., concur.
