Lee v. State

Apr 12, 2002
5D02-490
Versions:813 So. 2d 275
2002 WL 537292

GRIFFIN, J.

Petitioner, Dirk Randall Lee, seeks a belated appeal of his convictions and sentences on April 9, 1998. Petitioner claims that when he entered his guilty plea to carjacking with a deadly weapon and aggravated battery with a deadly weapon, the trial court failed to advise him of the right to appeal and to have counsel appointed if he was indigent, in violation of Florida Rule of Criminal Procedure 3.670, and that his trial counsel actually advised him that he was giving up the right to appellate review by entering his plea. Florida Rule of Appellate Procedure 9.141(c)(4)(A) provides that a petition for a belated appeal shall not be filed more than two years after the expiration of the time for filing a notice of appeal unless it alleges under oath, with a specific factual basis, that the petitioner was: (i) unaware an appeal had not been timely filed or was not advised of the right to appeal and (ii) should not have ascertained such facts by the exercise of reasonable diligence. In this case, the petition was filed more than two years after May 9, 1998, the last day for filing an appeal, so the petition is untimely, unless petitioner fits within the exception.

Given the fact that he has alleged that he was not told of his right of appeal, petitioner is entitled to a hearing to determine if his allegation is correct, and if so, if the “reasonable diligence” component of belated appeal relief has been met. See Coyle v. City of Ft. Lauderdale, 785 So.2d 1254, 1255 (Fla. 4th DCA 2001), review denied, 807 So.2d 653 (Fla.2002). Accordingly, we appoint the trial judge as commissioner to make findings of fact and to advise this court within sixty days. In making this determination, we commend to the lower court the analysis of this issue contained in Judge Farmer‘s dissent in Coyle. Id. at 1256-60.

REMANDED.

PALMER and ORFINGER, R.B., JJ., concur.