This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of criminal attempt burglary and his punishment was assessed at life imprisonment. This conviction was affirmed, Smith v. State, No. 01-01-00272-CR (Tex. App. -- Houston, delivered July 3, 2002).
Applicant contends that he was denied an opportunity to file a petition for discretionary review because his attorney miscalculated the deadline for filing his petition for discretionary review. An affidavit filed by counsel confirms that counsel miscalculated the deadline which caused Applicant's petition for discretionary review to be filed one business day late and resulted in a dismissal as untimely filed. Therefore, Applicant is entitled to relief.
The proper remedy in a case such as this is to return Applicant to the point at which he can file a petition for discretionary review. He may then follow the proper procedures in order that a meaningful petition for discretionary review may be filed. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of this Court issues. We hold that should Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days after the mandate of this Court has issued.
DELIVERED: May 21, 2003
DO NOT PUBLISH