Brazile v. State, 92-4158
| Decision Date | 03 May 1993 |
| Docket Number | No. 92-4158,92-4158 |
| Citation | 618 So.2d 305 |
| Parties | 18 Fla. L. Weekly D1161 Willie James BRAZILE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Willie James Brazile, pro se.
No appearance for appellee.
Willie James Brazile seeks review by belated appeal of an order denying his motion for post-conviction relief. On our own motion, we reverse the order of the trial court granting appellant the right to a belated appeal. Our reversal is without prejudice to appellant filing a petition for writ of habeas corpus in this court seeking the right to a belated appeal.
Appellant filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 seeking the right to file a belated appeal. Appellant's motion alleged that his previous motion for post-conviction relief, alleging ineffective assistance of counsel, was denied by the trial court in August of 1991. Appellant alleged, however, that he did not receive a copy of the order denying his motion until eight months later on April 20, 1992. Appellant argued that under the circumstances he should be entitled to a belated appeal. The trial court granted the motion specifically finding that the clerk of the court had been directed to furnish a copy of the order denying the ineffective assistance of counsel claim by certified mail and that there was no record in the court file of compliance with that order. The court concluded by finding that "defendant did not receive a copy of the order within the time for filing a notice of appeal." After entry of the order granting the right to a belated appeal, appellant promptly filed a notice of appeal which indicated he was appealing the August 6, 1991 order. 1
A trial court can grant the right to initiate a belated appeal in only two situations, both of which involve ineffective assistance of trial counsel. In criminal cases if the defendant demonstrates that trial counsel was ineffective in failing to timely file a notice of appeal, the trial court can grant relief pursuant to Florida Rule of Criminal Procedure 3.850. State v. District Court of Appeal, First District, 569 So.2d 439 (Fla.1991). In termination of parental rights cases, if the parent demonstrates that counsel was ineffective in failing to timely file a notice of appeal, the trial court can grant the parent the right to a belated appeal, pursuant to a petition for writ of habeas corpus. In the Interest of E.H., 609 So.2d 1289 (Fla.1992). In our opinion all other requests for belated appeal must be filed as a petition for writ of habeas corpus in the appellate court. See Scalf v. Singletary, 589 So.2d 986 (Fla. 2d DCA1991). 2 Since in this case appellant's claim for belated appeal is based on failure to timely receive a copy of the order, he should have filed a petition for writ of habeas corpus in this court.
Accordingly, we reverse the order on appeal granting appellant the right to a belated appeal. Our action is without prejudice to appellant seeking a belated appeal in this court.
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Stephenson v. State, 93-00405
...corpus." 569 So.2d at 442 (footnote omitted). Accord Scalf v. Singletary, 589 So.2d 986 (Fla. 2d DCA 1991); Brazile v. State, 618 So.2d 305, 306 n. 2 (Fla. 1st DCA 1993) (commenting that the procedure used before First District of having an appellate court consider a request for a belated a......
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Lane v. State, 1D02-1220.
...to consider Lane's request for a belated appeal from judgment and sentence. Counsel for appellant relies on Brazile v. State, 618 So.2d 305 (Fla. 1st DCA 1993) for the trial court's authority in this matter, but Brazile was effectively overruled by the promulgation of Rule 9.140(j) (now ren......