DERRIUS HOWARD, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 5th DCA | 2002-08-30
No. 5D02-2006
THOMPSON, C.J., and HARRIS, J., concur.
824 So. 2d 1015 Florida District Court of Appeal, Fifth District (2002) Positive Treatment
Cited by 4 cases
Topics
Collateral Relief Belated Appeal Motion To Suppress Ineffective Assistance Of Counsel

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Opinion of the Court
SHARP, W., J.

[*1016] SHARP, W., J.

Howard has filed a petition with this court requesting a belated appeal. Howard pled guilty in the trial court to possession of a controlled substance1 and resisting arrest without violence.2 He was adjudicated guilty of both charges and sentenced. Howard argues in this petition that his trial counsel was ineffective because he was advised to plead guilty to both charges without reserving his right to appeal the trial court’s denial of his motion to suppress evidence. We deny the petition without prejudice to Howard to seek an appropriate remedy, if available to him.

Howard fails to allege here that he requested his trial counsel to file an appeal and that 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.

Petition for Belated Appeal DENIED WITHOUT PREJUDICE.

THOMPSON, C.J., and HARRIS, J., concur. . § 893.13(6)(a), Fla. Stat. . § 843.02, Fla. Stat.

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Citator

Cited By

  • Fritz Pamphile v. State, 65 So. 3d 107 (Fla. 4th DCA 2011)
    …ndant may challenge a guilty plea in a rule 3.850 motion based on “allegations regarding the ineffective assistance of defense counsel in counsel’s efforts to represent the defendant during the plea proceedings”) (citation omitted); Howard v. State, 824 So. 2d 1015, 1016 (Fla. 5th DCA 2002) (noting that filing a rule 3.850 motion alleging ineffective assistance of counsel is the appropriate remedy for a defendant whose attorney advised him or her to plead guilty without reserving the right to appeal). Affirme…
  • Perez v. State, 898 So. 2d 186 (Fla. 5th DCA 2005)
    …red a negotiated guilty plea and expressly waived the right to appeal matters relating to the judgment if it is shown that the defendant specifically requested that counsel file a direct appeal, and counsel failed to do so). We find Howard v. State, 824 So. 2d 1015 (Fla. 5th DCA 2002) to be dispositive. In Howard, a defendant filed a petition for belated appeal, arguing that his trial counsel was ineffective because counsel advised Howard to plead guilty to two charges without advising him that he could reserv…

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