Brown v. State, No. 87-116

No. 87-116 | Fla. Dist. Ct. App. | Feb 19, 1987

ORFINGER, Judge.

The order denying the petition for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 is affirmed, because this second petition either alleges matters which were or could have been raised on appeal, Bundy v. State, 490 So. 2d 1258" court="Fla." date_filed="1986-06-30" href="https://app.midpage.ai/document/bundy-v-state-1875754?utm_source=webapp" opinion_id="1875754">490 So.2d 1258 (Fla.1986), Rogers v. State, 467 So. 2d 819" court="Fla. Dist. Ct. App." date_filed="1985-04-25" href="https://app.midpage.ai/document/rogers-v-state-1685165?utm_source=webapp" opinion_id="1685165">467 So.2d 819 (Fla. 5th DCA 1985) or which were previously raised in a 3.850 motion and denied. See Christopher v. State, 489 So. 2d 22" court="Fla." date_filed="1986-06-05" href="https://app.midpage.ai/document/christopher-v-state-1151328?utm_source=webapp" opinion_id="1151328">489 So.2d 22 (Fla.1986).

But for the failure of the trial court to include in its order the language required by Rule 3.850 that the defendant has a right to appeal the order within 30 days of its rendition, this appeal would have been dismissed as untimely. Where a defendant has not been advised of the right to appeal the denial of a Rule 3.850 motion and the time limit for such appeal, an untimely notice of appeal will he treated as timely. State ex rel. Shevin v. District Court of Appeal of Florida, Third District, 316 So. 2d 50" court="Fla." date_filed="1975-07-17" href="https://app.midpage.ai/document/state-ex-rel-shevin-v-district-court-of-appeal-1887284?utm_source=webapp" opinion_id="1887284">316 So.2d 50 (Fla.1975). We emphasize to the trial courts the importance of advising a defendant of this right. We therefore treat this appeal as timely filed, and affirm the order appealed from.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.