ROBERT JAMES MISURACA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Petitioner sought a belated appeal of his 2005 sentence more than two years after the deadline for filing a petition for belated appeal had passed. The court denied the petition because petitioner learned of his counsel's failure to file a timely notice of appeal within the two-year window prescribed by Florida Rule of Appellate Procedure 9.141(c)(4)(A), making his later petition untimely.
The petition for belated appeal is denied. Petitioner learned within the two-year window that no appeal had been filed and failed to file a timely petition for belated appeal. His interpretation that the two-year period runs from when he discovered the failure, rather than from the expiration of the original appeal period, is rejected.
[1] A petition for a belated appeal must be filed within two years of the expiration of the time for filing the notice of appeal, unless specific exceptions apply.
[2] A petitioner seeking a belated appeal must demonstrate they were unaware an appeal had not been timely filed or were not advised of the right to an appeal, and that they…
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 petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner (i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and (ii) should not have ascertained such facts by the exercise of reasonable diligence.”
The controlling rule establishing the deadline and exception for belated appeal petitions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePetitioner was sentenced to fifteen years in prison on September 12, 2005. He requested his defense counsel to file an appeal, but she failed to do so…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Petition cases and more on FLexlaw
Petitioner seeks a belated appeal of his judgment and sentence. We deny the petition.
The petition was filed under the mailbox rule on January 3, 2009. According to Petitioner’s allegations, on September 12, 2005, he was sentenced to fifteen years in prison. He alleges that at the time of sentencing he asked counsel to file the appeal, but she failed to do so. Petitioner further alleges that he learned of defense counsel’s omission after receiving a response to his notice of appeal inquiry from the clerk of court on September 25, 2007. That response from the clerk indicated that no notice of appeal had ever been filed. Petitioner admits his awareness of the two-year window for filing a timely petition for belated appeal, but he contends that the instant petition is timely because “it is filed within two-years [sic] of the petitioner becoming aware that no appeal was filed despite his request that counsel do so.”
Florida Rule of Appellate Procedure 9.141(c)(4)(A) provides the relevant time limit to be applied to a petition seeking a belated appeal. It states in pertinent part:
(A) A petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner
(i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and
(ii) should not have ascertained such facts by the exercise of reasonable diligence.
Here, Petitioner’s own assertions demonstrate that, within the two-year window for seeking a belated appeal, he learned that no appeal had been filed. Petitioner alleges that he was sentenced on September 12, 2005. Thus, he had thirty days from this date (i.e., until October 12, 2005) to file a timely notice of appeal. When no appeal was filed, rule 9.141(c)(4)(A) became applicable. The rule allows two years from the “expiration of time for filing the notice of appeal” to file a petition for a belated appeal. Thus, Petitioner had until October 12, 2007, to file a timely petition for belated appeal.
According to Petitioner, he learned that defense counsel had failed to file a notice of appeal on September 25, 2007, seventeen days prior to the expiration of the two-year window. Petitioner has failed to offer any basis for concluding that he could not have filed a timely petition for belated *698appeal.1
Accordingly, the instant is DENIED.
PALMER, C.J., and COHEN, J., concur.