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Wimmer v. State

The trial court failed to make the required inquiry and relevant findings when denying the defendant's motion for out-of-time appeal.

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In this appeal, the State concedes the trial court erred by denying Michael Wimmer’s motion for an out-of-time appeal without inquiring into the legally relevant circumstances. We agree and therefore vacate and remand for further proceedings.

Wimmer and the State agree to the following facts:1 In 1997, Wimmer was tried and convicted of robbery by intimidation, false imprisonment, interference with government property, and making a terroristic threat. The trial court did not advise Wimmer on the record that he had a right to appeal, to an attorney on appeal, or to a court-appointed attorney if he could not afford one. Wimmer’s court-appointed trial counsel never moved for new trial or filed a notice of appeal. In 2012, Wimmer filed a motion for out-of-time appeal, but the trial court did not conduct an evidentiary hearing on Wimmer’s motion.

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