JACK D. NIEVES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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THOMPSON, J.
Jack D. Nieves petitions this court for writ of habeas corpus, seeking a belated appeal. He asserts the trial court erred when it denied his motion to dismiss counsel. Shortly after the trial court denied the motion, Nieves entered a plea of nolo contendere to second' degree murder. He argues that the trial court and his trial counsel should have informed him that he could have appealed the trial court’s decision. He cites Florida Rules of Appellate Procedure 9.140(b)(2)(A) and 9.140(j) to support his argument.
To obtain a belated appeal under Rule 9.140(j), the petition must allege that petitioner requested counsel to proceed with an appeal and his counsel failed to honor his request. See Fla. R.App. P. 9.140(j)(2)(F); Nazworth v. State, 715 So. 2d 1061 (Fla. 5th DCA 1998); Gilliam v. State, 611 So. 2d 90 (Fla. 2d DCA 1992). We deny the petition because Nieves does not allege that he advised counsel to file an appeal after sentencing. However, it is without prejudice for Nieves to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 since he alleges four grounds of ineffective assistance of counsel.
DENIED without prejudice.
COBB and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Derrius Howard v. State, 824 So. 2d 1015 (Fla. 5th DCA 2002)…counsel failed to honor his request. Whether his trial counsel was ineffective for failing to advise him that he should and could reserve his right to appeal the denial of the motion to suppress is not cognizable in this proceeding. Nieves v. State, 737 So. 2d 587 (Fla. 5th DCA 1999). Howard’s appropriate remedy is to file a rule 3.850 motion in the trial court alleging ineffective assistance of trial counsel. Accordingly, we deny this petition without prejudice to seek appropriate collateral relief. Petitio…
Authorities Cited
- Douglas v. Gilliam, 611 So. 2d 90 (Fla. 2d DCA 1992)
- Nazworth v. State, 715 So. 2d 1061 (Fla. 5th DCA 1998)