ALEJANDRO M. PONCE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alejandro Ponce appeals the trial court's denial of his Rule 3.850 motion requesting a belated appeal of his probation violation sentence. The Florida Third District Court of Appeal treats the appeal as a petition for belated appeal and denies it, holding that Ponce's explicit waiver of his right to appeal at his plea colloquy bars the belated appeal request.
The court denies the petition for belated appeal, holding that Ponce's explicit waiver of his right to appeal at the plea colloquy precludes a belated appeal, and his motion failed to allege with specificity any of the limited exceptions necessary for an appeal from a guilty plea.
[1] A motion for a belated appeal must be filed in the appellate court, not the trial court.
[2] A defendant who expressly waives the right to appeal during a plea colloquy generally forfeits the right to a direct appeal.
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Join FLexlaw to unlock all legal intelligence“[T]he record reveals that the defendant pled guilty, that at the plea colloquy, the defendant expressly waived his right to a direct appeal, and that the defendant's motion failed to allege with specificity any of the limited exceptions, dictated by Robinson v. State, 373 So.2d 898 (Fla.1979), necessary for an appeal from a guilty plea.”
The court's statement of the legal standard for belated appeals from guilty pleas and application to Ponce's case
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Join FLexlaw to unlock all legal intelligenceIn October 1997, Ponce entered into a plea agreement admitting to a probation violation and was sentenced to thirty months in prison. At the plea coll…
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COPE, J.
Alejandro M. Ponce appeals an order denying his motion under Florida Rule of Criminal Procedure 3.850. We treat the appeal as a petition for belated appeal under Florida Rule of Appellate Procedure 9.140(j), and deny it.
In October 1997, pursuant to a plea agreement, defendant-petitioner Ponce admitted that he had violated his probation and was sentenced to thirty months in prison. In the plea colloquy, he explicitly gave up his right to appeal. In January 1998, defendant filed a Rule 3.850 motion, in which he requested a belated appeal of the judgment sentencing him to prison. Defendant’s motion contends that he had asked his counsel to appeal, but counsel had failed to do so. The trial court denied the Rule 3.850 motion, and defendant has appealed.
Effective January 1, 1997, the procedure for requesting a belated appeal is to file a petition for belated appeal in the appellate court. See Fla.R.App.P. 9.140©; Amendments to the Florida, Rules of Appellate Procedure, 685 So. 2d 773, 777 (Fla.1996). The request for belated appeal should have been filed in this court, not the trial court. We therefore treat the appeal as a petition for belated appeal under Rule 9.140©. See Fla.R-App.P. 9.040(e).
On the merits, we deny the petition for belated appeal. “[T]he record reveals that the defendant pled guilty, that at the plea colloquy, the defendant expressly waived his right to a direct appeal, and that the defendant’s motion failed to allege with specificity any of the limited exceptions, dictated by Robinson v. State, 373 So. 2d 898 (Fla.1979), necessary for an appeal from a guilty plea.” Gonzalez v. State, 685 So. 2d 975, 976 (Fla. 3d DCA 1997) (citations omitted); see also Battie v. Singletary, 718 So. 2d 323 (Fla. 3d DCA 1998); Gonzalez v. Singletary, 713 So. 2d 1057 (Fla. 3d DCA 1998); White v. Singletary, 711 So. 2d 640 (Fla. 3d DCA 1998); Loadholt v. State, 683 So. 2d 596, 597 (Fla. 3d DCA 1996); Hampton v. State, 680 So. 2d 581, 583 (Fla. 3d DCA 1996). We certify direct conflict with Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998) (en banc).
Petition for belated appeal denied; direct conflict certified.
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Citator
Cited By
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Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999)…The Trowell decision has also necessarily disapproved this court's decisions, to the extent they disallow belated appeals, in Canty v. State, 730 So. 2d 385, 386 (Fla. 3d DCA 1999); Canton v. State, 729 So. 2d 994 (Fla. 3d DCA 1999); Ponce v. State, 722 So. 2d 838, 839 (Fla. 3d DCA 1998); Battie v. Singletary, 718 So. 2d 323, 324 (Fla. 3d DCA 1998); Gonzalez v. Singletary, 713 So. 2d 1057, 1058 (Fla. 3d DCA) review granted, 719 So. 2d 892 (Fla.1998); and White v. Singletary, 711 So. 2d 640 (Fla. 3d DCA 1998).…
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Donnell Canty v. State, 730 So. 2d 385 (Fla. 3d DCA 1999)…efendant waived the right to appeal, and defendant’s motion does not set forth any of the limited exceptions under which there is a right to direct appeal after a guilty plea. See Robinson v. State 373 So. 2d 898 (Fla.1979); see also Ponce v. State, 722 So. 2d 838 (Fla. 3d DCA 1998); Gonzalez v. State, 685 So. 2d 975, 976 (Fla. 3d DCA 1997). On this point, we certify direct conflict with Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998) (en banc). Defendant’s claim that trial counsel misad-vised him of t…
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Canton v. State, 729 So. 2d 994 (Fla. 3d DCA 1999)…40(j). Because the defendant pled guilty and, furthermore, because the petition does not indicate that the defendant fits into one of the exceptions set forth in Robinson v. State, 373 So. 2d 898 (Fla. 1979),we deny the petition. See Ponce v. State, 722 So. 2d 838 (Fla. 3d DCA 1998); Gonzalez v. Singletary, 713 So. 2d 1057 (Fla. 3d DCA), review granted, 719 So. 2d 892 (Fla.1998); Gonzalez v. State, 685 So. 2d 975 (Fla. 3d DCA 1997). We certify direct conflict with Trowell v. State, 706 So. 2d 332 (Fla. 1st…
Authorities Cited (12 total)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)
- Gonzalez v. State, 685 So. 2d 975 (Fla. 3d DCA 1997)
- Peterson v. State, 680 So. 2d 581 (Fla. 2d DCA 1996)
- Loadholt v. State, 683 So. 2d 596 (Fla. 3d DCA 1996)
- Keithan Darnell Battie v. Singletary, 718 So. 2d 323 (Fla. 3d DCA 1998)
- White v. Singletary, 711 So. 2d 640 (Fla. 3d DCA 1998)
- Sapp v. State, 711 So. 2d 640 (Fla. 4th DCA 1998)