Arizmendi v. State

894 So. 2d 309, 2005 WL 433323

• Court: District Court of Appeal of Florida
• Decided: February 25, 2005
• Docket: 5D04-3534
• Status: Published

Opinion

894 So.2d 309 (2005)

Michael ARIZMENDI, Petitioner,
v.
STATE of Florida, Respondent.

No. 5D04-3534.

District Court of Appeal of Florida, Fifth District.

February 25, 2005.

Michael Arizmendi, Century, Pro Se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.

ORFINGER, J.

Michael Arizmendi petitions this Court for a belated appeal of the denial of his rule 3.850 motion for postconviction relief. The order Arizmendi seeks to appeal failed to advise him of his right to appeal or the time for doing so, as required by Florida Rule of Criminal Procedure 3.850(g).^[1]

A criminal defendant is entitled to a belated appeal when an order denying relief pursuant to Florida Rule of Criminal Procedure 3.850 fails to inform the defendant of the right to appeal within thirty days. Pippin v. State, 616 So.2d 1182, 1182 (Fla. 1st DCA 1993) (finding that failure to include a statement in an order denying motion for postconviction relief that movant had a right to appeal within thirty days of rendition of order warranted granting of belated appeal); Darden v. State, 588 So.2d 275, 275 (Fla. 2d DCA 1991).

We grant the petition for belated appeal. Moreover, this opinion shall be treated as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PETERSON and THOMPSON, JJ., concur.

NOTES

[1] Florida Rule of Criminal Procedure 3.850(g) provides, in part:

(g) Appeal; Rehearing; Service on Movant. . . . All orders denying motions for postconviction relief shall include a statement that the movant has the right to appeal within 30 days of the rendition of the order. . . .