SOMCHAI MILLER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a petition for belated appeal is legally insufficient if it fails to allege misadvice regarding the availability of appellate review, rather than just the advisability of pursuing an appeal.
[1] A petition for a belated appeal must allege misadvice regarding the availability of appellate review, not merely the advisability of pursuing a particular course of actio…
[2] A petitioner seeking a belated appeal must allege when the alleged misadvice from counsel occurred to establish prejudice regarding appeal rights.
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Join FLexlaw to unlock all legal intelligenceSomchai Miller sought a belated appeal of an order denying his second amended motion for postconviction relief, alleging his counsel gave unreasonable…
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Somchai Miller timely seeks a belated appeal of an order denying his second amended motion for postconvictidn relief. We adopt the recommendation of the special master to dismiss the petition for failure to set forth a prinia facie basis for relief, but do so without prejudice to Miller filing a new petition stating a legally sufficient claim, if he is able to do so.
Miller alleges that he retained counsel to pursue postconviction remedies, and at some unspecified time following the denial of his second amended motion and a timely motion for rehearing, he and his family discussed with counsel “what should be done.” Counsel is alleged to have advised that the best course of action was to file a second or successive motion with the trial court, advice that Miller now characterizes as “entirely unreasonable” under the circumstances. He therefore requests that he be granted a belated appeal.
Florida Rule of Appellate Procedure 9.141 (c)(4) (F)(i) provides in relevant part that “a petition seeking belated appeal must state whether the petitioner requested counsel to proceed with the appeal and the date of any such request, or if the petitioner was misadvised as to the availability of appellate review or the status of filing a notice of appeal.” Miller does not allege that he asked counsel to pursue an appeal, but we do not view that omission as material because he readily concedes that as a consequence of counsel’s allegedly erroneous advice, no such request was made. However, while he does assert that he was misadvised as to the proper course of action following the denial of his second amended motion, he does not allege that he was “misadvised as to the availability of appellate review.” Absent an affirmative allegation of misadvice as to the availability of an appeal as opposed to the advisability of pursuing an appeal, his present claim is legally insufficient to establish a basis for granting relief. Moreover, by failing to specifically allege when the interaction with' counsel occurred, petitioner has failed to set forth a prima facie basis for relief since even if erroneous, the advice to pursue another potential remedy would not have prejudiced him with respect to his appeal rights if that advice was solicited 'and given after the time for appealing had already expired.
Accordingly, the petition seeking belated appeal is DISMISSED as legally insufficient. This disposition is without prejudice to the filing of a new petition curing the deficiencies identified herein and otherwise complying with the requirements of Florida Rule of Appellate Procedure 9.141(c).
WETHERELL, MAKAR, and WINOKUR, JJ., concur.