Opinion
No. 83-1734.
February 21, 1985. Rehearing Denied June 17, 1985. Rehearing En Banc Granted June 17, 1985.
Appeal from the Circuit Court, Seminole County, Dominick J. Salfi, J.
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for respondents.
This is a petition for writ of habeas corpus for belated appellate review. We previously appointed a commissioner to determine whether Joseph was denied his right to appellate review due to ineffective assistance of counsel. Joseph v. State, 451 So.2d 886 (Fla. 5th DCA 1984).
We hold that Joseph is entitled to a belated appeal despite the contrary finding by the commissioner. At the hearing, Joseph's counsel admitted that he had taken upon himself the responsibility for deciding whether to appeal and what other post-trial remedies to pursue. In our view, this was (with the understanding and concurrence of his client) tantamount to Joseph's having timely requested an appeal.
When counsel later filed an appeal, it was filed untimely because he was unaware that a motion to reduce sentence, Fla.R.Crim.P. 3.800, did not toll the time for filing an appeal. Under these circumstances, appellant is entitled to a belated appeal. State v. Meyer, 430 So.2d 440 (Fla. 1983).
BELATED APPEAL GRANTED.
DAUKSCH, J., concurs.
COWART, J., dissents with opinion.
Joseph's original petition for habeas corpus to obtain belated appeal of his criminal conviction did not allege that his private attorney had, within the time allotted for appeal, agreed to appeal and failed to do so. See the dissent in Joseph v. State, 451 So.2d 886 (Fla. 5th DCA 1984). When this case was referred by this court to a commissioner, the commissioner found as a fact that Joseph requested his private counsel to file a post conviction petition under Rule 3.800(b) for a reduction or mitigation of his sentence and expressly found that "the evidence produced before this commissioner is insufficient to convince the commissioner that Robert Joseph had requested his attorney to file an appeal." It was the commissioner's express conclusion that Robert Joseph had not been denied his appeal rights because of any ineffective assistance of his private counsel. The petition should be denied on its face and on the facts found by the commissioner.