
    Mack Daniel HOWLETT, Petitioner, v. Louie L. WAINWRIGHT, Director of the Florida Division of Corrections, Respondent.
    No. 42500.
    Supreme Court of Florida.
    Nov. 22, 1972.
    Walter N. Colbath, Jr., Public Defender, and Charles W. Musgrove, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Nelson E. Bailey, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Court having issued Rule to Show Cause and having considered the return of the respondent to said Rule, it is ordered that the petition for writ of habeas corpus is hereby denied.

ROBERTS, C. J., and CARLTON, McCAIN and DEKLE, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Justice

(dissenting):

It appears admitted in the State’s return to our rule to show in habeas corpus that Petitioner Howlett, an indigent with court-appointed counsel, did not avail himself of the opportunity to petition this Court for a writ of certiorari review of his case because he was not given due and timely notice of the Fourth District Court’s final affirmance of his conviction and sentence of five years for larceny. His counsel only learned that Petitioner’s petition for rehearing of the District Court’s original decision to affirm the conviction was denied by reading of the District Court’s ruling in the Southern Reporter advance sheets after the time provided by the rules for filing a petition for writ of certiorari to review the District ¿burt’s decision in this Court had expired.

The State contends that the Petitioner has no fundamental right to petition for a writ of certiorari review by this Court of the District Court’s affirmance of the conviction; that only a direct, appeal is constitutionally guaranteed. See Baggett v. Wainwright, Fla.1969, 229 So.2d 239. The State points out that the granting of a cer-tiorari review by this Court is merely a matter of discretion.

Even though this argument may be technically correct, it begs the question and skirts the issue of affording equal justice under the exceptional and particular facts of this case.

We should exercise our habeas corpus jurisdiction discretion and allow the Petitioner the opportunity within a short period to file with us his petition for writ of certio-rari and then determine therefrom if it has merit entitling him to a certiorari review. If it has no merit, it can be summarily denied, as are hundreds of other petitions which were timely filed.

It does not appear to me that merely because there is no fundamental right to file a petition for certiorari is a good reason for our refusing to exercise our discretion to allow the equivalent of the late filing through habeas corpus, where the reason for failure to file on time was due to lack of official notice of the District Court’s ruling.  