ANDREW VASQUEZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Vasquez petitioned for a belated appeal of his criminal conviction after his initial pro se notice of appeal was dismissed for failure to prosecute. The court denied the petition because Vasquez failed to adequately allege that he timely requested counsel to pursue an appeal, a requirement established in State v. Trowell.
Vasquez is not entitled to a belated appeal because he failed to specifically allege that he timely requested counsel to file an appeal or that he advised counsel an appeal had been filed, as required by State v. Trowell. The petition is denied without prejudice to filing a facially sufficient petition.
[1] A petition for a belated appeal must specifically allege that a timely request was made for counsel to file an appeal.
[2] A defendant seeking a belated appeal must allege that counsel failed to file an appeal after being instructed to do so.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a belated appeal should be granted if the defendant alleges that a timely request was made for counsel to file an appeal, but counsel failed to do so”
Establishes the legal standard from State v. Trowell for entitlement to a belated appeal
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Join FLexlaw to unlock all legal intelligenceVasquez filed a pro se motion to withdraw his plea, which was stricken because he was represented by counsel. He then filed a pro se notice of appeal …
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[*426] PALMER, J.
Andrew Vasquez filed a petition seeking a belated appeal of his conviction and sentence. Concluding that Vasquez’s petition is facially insufficient, we deny the petition without prejudice to filing a sufficient petition.
According to his petition, after Vasquez’s pro se motion to withdraw plea was stricken by the trial court on grounds that he was represented by counsel, Vasquez filed a pro se notice of appeal. Vasquez was declared indigent, but counsel was not appointed to represent him on appeal nor did his private counsel file any additional paperwork. The appeal was subsequently dismissed for failure to prosecute.
Vasquez thereafter filed a motion to reinstate the appeal which was denied without prejudice because he had not filed a motion to appoint counsel. He then requested the circuit court to appoint counsel. Appointed counsel now states that Vasquez has indicated that he wishes to pursue an appeal “as previously requested.” Vasquez alleges that he is entitled to receive a belated appeal because he lost the right to appeal, due to the neglect, inadvertence, or error on the part of counsel. Vasquez does not expressly state that he made a timely request for trial counsel to file an appeal, which would have resulted in the appointment of appellate counsel. At best, he states that he advised his newly appointed appellate counsel that he wished to appeal “as previously requested.”
In State v. Trowell, 739 So. 2d 77, 81 (Fla.1999), the Florida Supreme Court stated that a belated appeal should be granted if the defendant alleges that a timely request was made for counsel to file an appeal, but counsel failed to do so. In Bridges v. State, 863 So. 2d 366 (Fla. 5th DCA 2003), this court denied a belated appeal where the defendant failed to allege that he informed counsel to proceed with an appeal. Also, in Bell v. State, 827 So. 2d 310 (Fla. 5th DCA 2002), this court denied a belated appeal without prejudice when the defendant failed to allege he made a timely request for an appeal which was not honored.
Vasquez has failed to show that he is entitled to receive a belated appeal because he has not specifically alleged that he timely requested counsel to file an appeal or even advised counsel that an appeal had been filed, so that counsel could file a motion for appointment of appellate counsel. Therefore, the petition is denied, without prejudice to filing a facially sufficient petition.
PETITION DENIED without prejudice.
PLEUS and TORPY, JJ„ concur.
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Milliken v. State, 925 So. 2d 1130 (Fla. 5th DCA 2006)…his knowledge.” See Moore. See also Scott v. State, 464 So. 2d 1171 (Fla.1985). Accordingly, we deny the petition without prejudice to Mr. Milliken to file a new petition containing sufficient allegations and a sufficient oath. See Vasquez v. State, 901 So. 2d 425 (Fla. 5th DCA 2005); Raley v. State, 884 So. 2d 501 (Fla. 5th DCA 2004). PETITION DENIED WITHOUT PREJUDICE. PLEUS, C.J., PALMER and MONACO, JJ., concur.…
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Hydle v. State, 940 So. 2d 1288 (Fla. 5th DCA 2006)…Hydle has filed a petition for a belated appeal of his criminal conviction. [*1289] We deny the petition without prejudice to file a legally sufficient petition consistent with Florida Rule of Appellate Procedure 9.141(c). See also Vasquez v. State, 901 So. 2d 425 (Fla. 5th DCA 2005). PETITION DENIED. PALMER, ORFINGER and TORPY, JJ., concur.…
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Martin v. State, 915 So. 2d 259 (Fla. 5th DCA 2005)…PER CURIAM. The petitioner seeks authorization to file a belated appeal. The petition, however, does not meet the standard required by State v. Trowell, 739 So. 2d 77 (Fla.1999). Thus, as we did in Vasquez v. State, 901 So. 2d 425 (Fla. 5th DCA 2005), we deny the petition without prejudice to file a legally sufficient petition. PETITION DENIED. SHARP, W„ ORFINGER and MONACO, JJ., concur.…
Authorities Cited
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)
- Nellums v. State, 863 So. 2d 366 (Fla. 1st DCA 2003)
- Bell v. State, 827 So. 2d 310 (Fla. 5th DCA 2002)