HECTOR RIVERA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Hector Rivera petitioned for a belated appeal three years after his sentencing, claiming his attorney failed to file a timely notice of appeal. The court denied the petition and imposed sanctions for perjury after finding Rivera made materially false statements under oath, having previously admitted in a 2003 motion that no direct appeal was filed.
The court denied Rivera's petition for belated appeal and imposed sanctions pursuant to Florida Statute § 944.279(1) for knowingly presenting false information to the court, finding that Rivera made materially false statements under oath after having admitted years earlier that no direct appeal was filed.
[1] A prisoner who knowingly or with reckless disregard for the truth brings false information or evidence before the court is subject to disciplinary procedures.
[2] A court shall issue a written finding of perjury and direct that a certified copy be forwarded to the appropriate institution for disciplinary procedures.
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Join FLexlaw to unlock all legal intelligence“Rivera's failure to take a direct appeal was stated in that sworn motion and reiterated in his pro se brief filed here in this court.”
Establishes that Rivera had previously admitted in 2003 proceedings that no direct appeal was filed, contradicting his 2006 sworn petition.
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Join FLexlaw to unlock all legal intelligenceRivera was sentenced on July 15, 2001 and did not file a direct appeal. In his belated appeal petition filed in 2006, Rivera swore he had requested hi…
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SAWAYA, J.
Hector Rivera entered a plea and was sentenced on July 15, 2001. He did not file a direct appeal. Now, in his sworn petition for belated appeal, Rivera alleges that when the trial judge informed him of his right to appeal, he immediately requested his attorney to “file the necessary appeal notice.” He states, under oath, that he “has just recently discovered that counsel never timely filed his notice of appeal.” Our records establish, however, that Rivera is well aware that this is an untrue statement. In fact, Rivera has known for more than three years that there was no direct appeal, as shown by his appeal of the denial of his rule 3.850 motion from June 2003. Rivera v. State, 879 So. 2d 642 (Fla. 5th DCA 2004). Rivera’s failure to take a direct appeal was stated in that sworn motion and reiterated in his pro se brief filed here in this court. The trial court also noted this fact in its order of denial.
We also note that Rivera’s petition is untimely by three years. The time for making a belated appeal request expired in August 2003. Because he knew there was no direct appeal, Rivera clearly does not fit into the two-year time limit exception stated in Florida Rule of Appellate Procedure 9.141(c)(4)(A) (allowing exception to time limit if petitioner “was unaware an appeal had not been timely filed or was not advised of the right to an appeal” and the petitioner “should not have ascertained such facts by the exercise of reasonable diligence”).
Faced with these facts, this court issued an order to Rivera to show cause why he should not be sanctioned for perjury based upon the conflicting allegations he made in 2003 and 2006. This court has now received the unsworn response. Among other excuses, Rivera blames the prisoner who helped him prepare his petition. However, he admits that he did sign the factually incorrect belated appeal petition.
In light of the patent evidence of perjury, and to protect the sanctity of the court proceedings, this court not only denies Rivera’s petition, but also imposes the sanction of section 944.279(1), Florida Statutes, which states in pertinent part:
A prisoner who is found by a court to have ... knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.
Accordingly, we direct the Clerk of this court to forward a certified copy of this opinion to the Tomoka Correctional Institution for the consideration of disciplinary procedures pursuant to section 944.279(1), Florida Statutes (2005), and request that a copy of the disposition report be forwarded to this court and the attorney general’s office.
We conclude by emphasizing that “[tjhis court receives many petitions for belated appeal, yet the allegations petitioners have to make are very minimal. Petitioners should not be allowed to cavalierly lie to this court-” Svoboda v. State, 932 So. 2d 545, 546 (Fla. 5th DCA 2006). We have not suffered dishonesty lightly in the past, Nixon v. State, 921 So. 2d 819 (Fla. 5th DCA 2006); Miller v. State, 917 So. 2d 261 (Fla. 5th DCA 2005), and we will not relax our intolerance now.
PETITION DENIED.
GRIFFIN and MONACO, JJ„ concur.
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Spera v. State, 971 So. 2d 754 (Fla. 2007)…collateral motion is frivolous or that the defendant "knowingly or with reckless disregard for the truth brought false information or evidence before the court,” which may result in the prisoner’s forfeiture of gain-time. See, e.g., Rivera v. State, 943 So. 2d 973, 974 (Fla. 5th DCA 2006) (certifying a statutory finding regarding a petition for belated appeal to the Department and stating, "We have not suffered dishonesty lightly in the past and we will not relax our intolerance now”); Simpkins v. State, 909…
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Prince v. State, 976 So. 2d 43 (Fla. 4th DCA 2008)…Affirmed. We further admonish appellant that, because of his total mischarac-terization of the sentencing transcript, any further actions of this nature may result in sanctions being imposed by the Department of Corrections. See Rivera v. State, 943 So. 2d 973 (Fla. 5th DCA 2006); § 944.279(1), Fla. Stat. STONE, POLEN and FARMER, JJ., concur.…
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Placide v. State, 41 So. 3d 430 (Fla. 5th DCA 2010)…but that he always files an appeal when asked to do so. The Commissioner found that the petitioner’s testimony did not refute his defense attorney’s credible testimony that no one contacted his office to request a timely appeal. See Rivera v. State, 943 So. 2d 973 (Fla. 5th DCA 2006). PETITION DENIED. SAWAYA, TORPY and EVANDER, JJ, concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Svoboda v. State, 932 So. 2d 545 (Fla. 5th DCA 2006)
- Nixon v. State, 921 So. 2d 819 (Fla. 5th DCA 2006)
- SITE2SHOP.COM v. MTM Trading (PTY) Ltd., 917 So. 2d 261 (Fla. 4th DCA 2005)
- Miller v. State, 917 So. 2d 261 (Fla. 5th DCA 2005)