Suarez v. State, 94-1192

• Decision Date: 31 July 1996
• Docket Number: No. 94-1192,94-1192
• Citation: 677 So.2d 1316
• Parties: 21 Fla. L. Weekly D1736 Mario H. SUAREZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1316

677 So.2d 1316

21 Fla. L. Weekly D1736

Mario H. SUAREZ, Appellant, v. The STATE of Florida, Appellee.

No. 94-1192.

District Court of Appeal of Florida, Third District.

July 31, 1996.

Mario H. Suarez, in proper person.

Robert A. Butterworth, Attorney General, for appellee.

Before JORGENSON, COPE and GERSTEN, JJ.

PER CURIAM.

Defendant, Mario H. Suarez, was prevented from timely appealing the trial court's denial of his original 3.850 motion for postconviction relief because he did not receive timely notice of that denial. We thus treat defendant's "Petition for Review of Belated Appeal of 3.850 Denial" as a petition for writ of habeas corpus for belated appeal and reach the merits of the appeal of the denial of his original 3.850 motion. See Fla. R.App. P. 9.040(c); Hildebrand v. Singletary, 666 So.2d 274 (Fla. 4th DCA 1996); Button v. State, 641 So.2d 106 (Fla. 2d DCA), rev. denied, 645 So.2d 450 (Fla.1994); see also State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla. 3d DCA 1975); Viqueira v. Roth, 591 So.2d 1147 (Fla. 3d DCA 1992). On the merits, we find no error in the trial court's summary rejection of defendant's claims of an involuntary plea and ineffective assistance of counsel. We do not consider the points of error raised in the present petition that were not raised in the original 3.850 motion. ¹ The relief sought by petitioner is denied.

COPE, Judge (dissenting).

In my view the appellant has sufficiently alleged a basis for relief on the basis of Ashley ² error. The motion was summarily denied and the record does not conclusively show that appellant is entitled to no relief. Fla. R.App. P. 9.140(g). ³

1 These points, centering primarily on petitioner's claim that he should have been provided an interpreter, are likely without merit as well because they are belied by the plea colloquy where petitioner professes to speak English and converses in English.

2 Ashley v. State, 614 So.2d 486 (Fla.1993).

3 If appellant should succeed in vacating his plea, the trial court would, of course, be free to impose the maximum legal sentence upon conviction, see Surinach v. State, 676 So.2d 997 (Fla. 3d DCA 1996), which in this case would be life imprisonment.