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Lee v. State

District Court of Appeal of Florida, Fifth District
Apr 12, 2002
813 So. 2d 275 (Fla. Dist. Ct. App. 2002)

Summary

finding that petitioner, who was seeking a belated appeal based on his allegation that when he entered his guilty plea the trial court failed to advise him of the right to appeal, was entitled to a hearing to determine if his allegation was correct, and if so, if the reasonable diligence component of belated appeal relief had been met

Summary of this case from Gaedtke v. McNeil

Opinion

No. 5D02-490.

April 12, 2002.

Petition for Belated Appeal, A Case of Original Jurisdiction.

Dirk Randall Lee, Avon Park, pro se.

No Appearance for Respondent.


Petitioner, Dirk Randall Lee, seeks a belated appeal of his convictions and sentences on April 9, 1998. Petitioner claims that when he entered his guilty plea to carjacking with a deadly weapon and aggravated battery with a deadly weapon, the trial court failed to advise him of the right to appeal and to have counsel appointed if he was indigent, in violation of Florida Rule of Criminal Procedure 3.670, and that his trial counsel actually advised him that he was giving up the right to appellate review by entering his plea. Florida Rule of Appellate Procedure 9.141(c)(4)(A) provides that a petition for a belated appeal shall not be filed more than two years after the expiration of the time for filing a notice of appeal unless it alleges under oath, with a specific factual basis, that the petitioner was: (i) unaware an appeal had not been timely filed or was not advised of the right to appeal and (ii) should not have ascertained such facts by the exercise of reasonable diligence. In this case, the petition was filed more than two years after May 9, 1998, the last day for filing an appeal, so the petition is untimely, unless petitioner fits within the exception.

Given the fact that he has alleged that he was not told of his right of appeal, petitioner is entitled to a hearing to determine if his allegation is correct, and if so, if the "reasonable diligence" component of belated appeal relief has been met. See Coyle v. City of Ft. Lauderdale, 785 So.2d 1254, 1255 (Fla. 4th DCA 2001), review denied, 807 So.2d 653 (Fla. 2002). Accordingly, we appoint the trial judge as commissioner to make findings of fact and to advise this court within sixty days. In making this determination, we commend to the lower court the analysis of this issue contained in Judge Farmer's dissent in Coyle. Id. at 1256-60.

REMANDED.

PALMER and ORFINGER, R.B., JJ., concur.


Summaries of

Lee v. State

District Court of Appeal of Florida, Fifth District
Apr 12, 2002
813 So. 2d 275 (Fla. Dist. Ct. App. 2002)

finding that petitioner, who was seeking a belated appeal based on his allegation that when he entered his guilty plea the trial court failed to advise him of the right to appeal, was entitled to a hearing to determine if his allegation was correct, and if so, if the reasonable diligence component of belated appeal relief had been met

Summary of this case from Gaedtke v. McNeil

In Lee v. State, 813 So.2d 275 (Fla. 5th DCA 2002), a belated direct appeal case, this court discussed the rule's two year provision noting an exception where (1) the petitioner was unaware an appeal had not been timely filed, or was not advised of the right to appeal, and (2) he could not have ascertained such facts by the exercise of reasonable diligence.

Summary of this case from Johnson v. Gibson

In Lee v. State, 813 So.2d 275 (Fla. 5th DCA 2002), we held that when a petitioner alleged that he was not informed of his right to appeal, he was entitled to a hearing to determine if his allegation had merit and, if so, whether petitioner could have ascertained the right to appeal by exercise of reasonable diligence.

Summary of this case from Cooper v. State
Case details for

Lee v. State

Case Details

Full title:DIRK RANDALL LEE, Petitioner, v. STATE OF FLORIDA, Respondent

Court:District Court of Appeal of Florida, Fifth District

Date published: Apr 12, 2002

Citations

813 So. 2d 275 (Fla. Dist. Ct. App. 2002)

Citing Cases

Johnson v. Gibson

Rule 9.141(c)(4)(A). In Lee v. State, 813 So.2d 275 (Fla. 5th DCA 2002), a belated direct appeal case, this…

Gaedtke v. McNeil

Further, the trial judge, when he renders a final judgment of conviction or imposes a sentence, shall inform…