DIRK RANDALL LEE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Dirk Randall Lee seeks a belated appeal of his 1998 guilty plea convictions for carjacking with a deadly weapon and aggravated battery, claiming he was not advised of his appellate rights in violation of Florida procedural rules. The court finds that because Lee alleges he was uninformed of his right to appeal, he is entitled to a hearing to determine whether he qualifies for belated appeal relief.
Lee is entitled to a hearing before the trial judge to determine whether his allegation that he was not informed of his appellate rights is correct and whether he satisfies the reasonable diligence component of belated appeal relief. The case is remanded for such findings.
[1] A petition for a belated appeal filed more than two years after the expiration of the time for filing a notice of appeal is untimely unless the petitioner alleges under o…
[2] A petitioner alleging they were not advised of their right to appeal is entitled to a hearing to determine the truth of the allegation and whether the "reasonable diligen…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the legal standard for belated appeal relief and the two-part requirement petitioner must satisfy.
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Join FLexlaw to unlock all legal intelligenceLee entered a guilty plea on April 9, 1998, to carjacking with a deadly weapon and aggravated battery with a deadly weapon. He claims the trial court …
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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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnson v. Gibson, 837 So. 2d 481 (Fla. 5th DCA 2002)…0, it was rule 9.140(j)- The rule provides that ordinarily, a petition for a belated appeal shall not be filed more than two years after the expiration of time for filing the notice of appeal from a final order. Rule 9.141(c)(4)(A). In Lee v. State, 813 So. 2d 275 (Fla. 5th DCA 2002), a belated direct appeal case, this court discussed the rule’s two year provision noting an exception where (1) the petitioner was unaware an appeal had not been timely filed, or was not advised of the right to appeal, and (2) he…
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Cooper v. State, 830 So. 2d 949 (Fla. 5th DCA 2002)…PETERSON, J. Dana L. Cooper seeks a belated appeal of his criminal conviction and sentence, alleging that his trial counsel advised him that no right to appeal existed and that the trial court never informed him differently. In Lee v. State, 813 So. 2d 275 (Fla. 5th DCA 2002), we held that when a petitioner alleged that he was not informed of his right to appeal, he was entitled to a hearing to determine if his allegation had merit and, if so, whether petitioner could have ascertained the right to app…
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Gaedtke v. McNeil, 612 F. Supp. 2d 1209 (M.D. Fla. 2009)
Authorities Cited
- Coyle v. City OF Fort Lauderdale, 785 So. 2d 1254 (Fla. 4th DCA 2001)