TRAYVIS DEVONNE SHAW, JR.

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA _____________________________

No. 1D18-1804 _____________________________

TRAYVIS DEVONNE SHAW, JR.,

Petitioner,

v. STATE OF FLORIDA,

Respondent.

_____________________________ Petition for Belated Appeal—Original Jurisdiction.

October 31, 2018 WINOKUR, J. Petitioner Trayvis Shaw, Jr. seeks a belated appeal of his 2016 conviction and forty-year sentence for robbery with a firearm. A special master recommended that Shaw be granted a belated appeal. We disagree, and deny the petition. During his robbery trial, after the jury left the courtroom to begin deliberations, Shaw fled the courthouse. When court reconvened after the jury reached a verdict, Shaw could not be located. The court proceeded without Shaw, and the jury found him guilty as charged of both counts. The court then sentenced Shaw, but did not orally pronounce that Shaw had thirty days to appeal the judgment and sentence.

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Two and a half months later, Shaw was arrested for absconding, and began serving his sentence. Shaw later petitioned for a belated appeal on two grounds: first, that prior to absconding on the day of his trial, he had directed his counsel to appeal any adverse verdict; and second, that the trial court failed to “advise” him of his right to appeal during sentencing. During a hearing on the petition, trial counsel testified that Shaw never asked him at any time to file an appeal of a potential conviction. The special master found Shaw’s assertion that he asked trial counsel to file an appeal not credible, and accepted trial counsel’s contrary testimony. However, the special master nonetheless recommended that Shaw be granted a belated appeal because the trial court failed to orally pronounce Shaw’s right to appeal.¹ The special master supported this conclusion with three reasons: first, counsel should not have consented to sentencing on the day of trial and Shaw’s appellate rights “would have been better protected” had he not; second, family members of Shaw were present at trial and they were never made aware that Shaw could appeal; and third, trial counsel could have just filed a notice of appeal without Shaw’s consent. None of these reasons supports belated appeal. Regarding the first and third reasons, neither is related to the trial court’s failure to orally pronounce Shaw’s right to appeal. While one can argue that trial counsel should have attempted to postpone sentencing, this has nothing to do with the

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trial court failing to pronounce the right to appeal.² The same is true with the special master’s third reason. The possibility that counsel could simply have filed a notice of appeal without any direction from Shaw has nothing to do with pronouncement of the right to appeal; in fact, it has nothing to do with Shaw’s right to a belated appeal at all. If the possibility that counsel could have filed a notice of appeal without the defendant’s instruction (or even knowledge) shows that belated appeal should be granted, then virtually every belated-appeal petitioner would be entitled to one. The special master also concluded that Shaw’s family members present at trial were never made aware of Shaw’s appellate rights. The implication is that family members could have asked trial counsel to appeal if the trial court had rendered this information. Trial counsel is not obligated to appeal merely because family members ask him for an appeal.³ This reason does not support belated appeal. The real question presented here is whether a defendant is entitled to a belated appeal when the court does not pronounce the right to appeal at sentencing, when the defendant has absconded and is not present at sentencing. Despite case law holding that a defendant is entitled to a belated appeal if the court fails to pronounce this right, the special master noted

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correctly that such case law is factually distinguishable from Shaw’s case because the defendants there were present to hear the court’s advice.⁴ This should have ended the inquiry. Notification of the right to appeal is required advice to the defendant.⁵ If the defendant is absent, there is no one to advise, and the failure to present the advice is harmless. The court is not required to give advice to an empty chair. Granting a belated appeal in this circumstance is elevating form over substance. Accordingly, Shaw is not entitled to a belated appeal, and the petition is DENIED. LEWIS and WETHERELL, JJ., concur.

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_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.