JENNINGS

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D22-3560 _____________________________

CHARLES D. JENNINGS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent. _____________________________

Petition for Belated Appeal–Original Jurisdiction.

July 5, 2023

ORDER REQUESTING REAPPOINTMENT

WINOKUR, J.

Charles D. Jennings seeks a belated appeal of his judgment and sentence. For the reasons that follow, we decline to adopt the report and recommendation provided by the appointed special master, and request reappointment.

This Court faces a chronic issue when presented with petitions for belated appeal. Our process for deciding these petitions often demands the involvement of parties who have no reason to participate, and seeks nothing from parties who may have pertinent information. For these reasons, in spite of the unnecessary labor we extract from others, we often receive

After the trial court entered judgment against Jennings and sentenced him to prison, he sought a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Jennings alleged that he requested counsel to file a timely notice of appeal. The petition appears to contain all information required by rule 9.141(c)(4). This Court, pursuant to its policy announced in Staley v. State, 12 So. 3d 778, 780 (Fla. 1st DCA 2009) (footnote omitted), “relinquished jurisdiction” to the trial court for appointment of a special master “to issue an order to show cause directed to the State Attorney, conduct an evidentiary hearing if warranted by the state’s response, and issue an appropriate report and recommendation concerning the petitioner’s entitlement to a belated appeal.”1

The appointed special master ordered the State Attorney to respond to the petition, and the State Attorney apparently indicated that his office did not object to a belated appeal. Accordingly, the special master’s report consisted entirely of the following: “The State Attorney’s Office does not object to the Appellant/Petitioner being granted a Belated Appeal. Accordingly, it is the RECOMMENDATION that the Petition for Belated Appeal be Granted.” The report does not include the State’s response to the petition for belated appeal.

Rule 9.141(c) provides a procedure for a defendant to seek an appeal even when the defendant has not filed a timely notice of appeal. “[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.” Fla. R. App. P. 9.141(c)(4)(F)(i).

1 We do not address whether jurisdiction to hear a belatedappeal petition, which expressly resides in the district court of appeal as an original proceeding, can be “relinquished” to the circuit court. See Fla. R. App. P. 9.141(c)(2), (3).

Henceforth, when we determine that a petition for belated appeal grounded on the alleged actions or inactions of trial counsel is legally sufficient, we will at that point relinquish jurisdiction to the lower tribunal for the purpose of appointing a special master to issue an order to show cause directed to the State Attorney, conduct an evidentiary hearing if warranted by the state’s response, and issue an appropriate report and recommendation concerning the petitioner’s entitlement to a belated appeal.

Id. (footnote omitted).² We indicated that this procedure was preferred because “[i]n most cases, prosecutors and defense counsel in the trial court will enjoy some level of professional familiarity and rapport, which we trust will simplify and speed the

2 In a comment to the predecessor of rule 9.141(c), the Florida Supreme Court stated, “In the rare case where entitlement to belated appeal depends on a determination of disputed facts, the appellate court may appoint a commissioner to make a report and recommendation.” See Amends. to the Fla. Rules of App. Proc., 696 So. 2d 1103, 1137 (Fla. 1996) (Committee Notes to Rule 9.140). Our appointment of a “special master” is based on this comment. We do not address whether it is appropriate to appoint a “special master” when no facts have been disputed.

Fourteen years of experience with Staley has belied our expectations, as this case shows. The appointed special master issued an order to show cause to the State Attorney, as directed in our order relinquishing jurisdiction. Apparently, the State Attorney stated nothing more than that he did not object to a belated appeal. The special master in turn relied on this fact alone to recommend a belated appeal. This is a common sequence of events in these matters. See, e.g., Glover v. State, 284 So. 3d 1150 (Fla. 1st DCA 2019); Pelham v. State, 279 So. 3d 852 (Fla. 1st DCA 2019).

What facts regarding Jennings’ allegations can we glean from the report and recommendation? What have we learned about the credibility of Jennings’ allegations? What exactly was the point of “relinquishing jurisdiction” and requiring the circuit court’s time and attention to this matter? All we now know is that the State Attorney, who most assuredly has better things to do, does not appear to have a particular interest in whether Jennings is granted a belated appeal. On the other hand, Jennings’ counsel, who was actually accused by Jennings of professional dereliction in the petition, has not been heard from. One may suspect that Jennings’ counsel has a different opinion of Jennings’ claim than does the State Attorney.

Our belief expressed in Staley that “prosecutors and defense counsel in the trial court will enjoy some level of professional familiarity and rapport” that would make decisions on these petitions more efficient and reliable is understandable. 12 So. 3d at 780. Unfortunately, it often does not seem to have worked out that way. If we are willing to grant belated appeals based on nothing more than a petitioner’s claim and the State Attorney’s unwillingness to contest that claim, then it is difficult to see the value in the process set forth in Staley. This procedure stems from our obligation to protect against the improper invocation of our jurisdiction. If we actually wish to fulfill that obligation by testing the validity of a belated-appeal petitioner’s claims, the Staley procedure often does not assist us.

5

In this case, we decline to adopt the report and recommendation because “it is generally insufficient for a special master to recommend a belated appeal based simply on its finding the State does not object to the petition.” Pelham, 279 So. 3d at 854. As we stated Glover, “[w]e do not have the benefit of the State’s response and nothing in the special master’s report indicates that the lack of the State’s objection is an admission to the facts as alleged in [the] petition.” 284 So. 3d at 1151. The same is true here.

It is therefore ORDERED that the Chief Circuit Judge of the Fourteenth Judicial Circuit is requested to reappoint a special master to serve as a commissioner, under the same terms as previously indicated in our Order dated of December 14, 2022.

B.L. THOMAS and LONG, JJ., concur.

_____________________________

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

Charles D. Jennings, pro se, Petitioner.

Ashley Moody, Attorney General, Tallahassee, for Respondent.