Mack v. State, 91-2075
| Decision Date | 26 September 1991 |
| Docket Number | No. 91-2075,91-2075 |
| Parties | 16 Fla. L. Weekly D2537 Daniel P. MACK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy Daniels, Public Defender, and Carol Ann Turner, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and James Rogers, Asst. Atty. Gen., Tallahassee, for appellee.
This is one of the first cases to reach this court pursuant to the decision in State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla.1990). On our own motion we issue this opinion to clarify the procedure in this case and other similar cases.
In 1988 appellant was charged by information with two counts of battery on a law enforcement officer. Appellant was found guilty and filed a motion for new trial. In November 1989 appellant's timely motion for new trial was denied. No notice of appeal was filed after that. In April 1991 appellant filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The sole remedy appellant sought in the motion was the right to a belated appeal. In support of the motion appellant cited to State v. District Court of Appeal which holds that an appellant who seeks the right to a belated appeal based upon ineffective assistance of counsel must raise the issue in the trial court by a motion pursuant to Rule 3.850. 1 The trial court granted appellant's motion and this appeal ensued.
Appellant commenced this appeal by filing a notice of appeal within thirty days from rendition of the order of the trial court granting the right to a belated appeal. The notice specified that the order being appealed was the judgment and sentence rendered November 1989. 2
The rules of appellate procedure do not specify how an appeal should be commenced in this situation. However, in our opinion, once the trial court determines that counsel was ineffective in not timely filing the notice of appeal something must still be done to invoke the jurisdiction of this court. We believe that what appellant did in this case was correct, namely filing a notice of appeal within 30 days of the date of rendition of the order of the trial court finding that appellant was entitled to a belated appeal. In our opinion the appellant was also correct in specifically identifying in the notice of appeal the order actually being appealed and its date of rendition. See Fla.R.App.P. 9.900(a).
This appeal is really an appeal of the final judgment and sentence pursuant to Rule 9.140(b)(1). 3 Since this is not an appeal of a denial of a Rule 3.850 motion, Florida Rule of Appellate Procedure 9.140(g) does not apply. If it does not apply, a complete record must be prepared and appellant and appellee are required to file a brief.
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...Criminal Procedure 3.850. See State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla.1990); Mack v. State, 586 So.2d 1266 (Fla. 1st DCA 1991); Hickman v. State, 581 So.2d 942 (Fla. 2d DCA 1991); Washington v. State, 576 So.2d 973 (Fla. 2d DCA WIGGINTON, BARFIELD an......
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Brazile v. State, 92-4158
...is without prejudice to appellant seeking a belated appeal in this court. SMITH, ZEHMER and ALLEN, JJ., concur. 1 See Mack v. State, 586 So.2d 1266 (Fla. 1st DCA 1991).2 We are aware that the Appellate Court Rules Committee of the Florida Bar is considering recommending changes in the appel......
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Williams v. State, 91-2440
...upon ineffective assistance of counsel must raise the issue in the trial court in a motion pursuant to Rule 3.850. Mack v. State, 586 So.2d 1266 (Fla. 1st DCA 1991), citing State v. District Court of Appeal, 569 So.2d 439 (Fla.1990). An allegation that the defendant made a timely request fo......
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Lofton v. State, 93-2901
...belated appeal. Inexplicably, the appeal that Lofton sought was not filed with this court until November 19, 1993. In Mack v. State, 586 So.2d 1266 (Fla. 1st DCA 1991), the court explained the problem encountered by the absence of specific rules of appellate procedure once a belated appeal ......