Battles v. State

930 So. 2d 769, 2006 Fla. App. LEXIS 7158, 2006 WL 1272608

Opinion

PER CURIAM.

George' Battles seeks a belated appeal from an order which extended his term of probation. Petitioner has provided undisputed evidence that the trial judge failed to advise him of his right to appeal. The state opposes the petition, contending that this court should find that Battles is estopped to challenge the extended probation because he accepted the benefit of the extension to avoid a prison sentence and/or because petitioner waived his right to appeal. We find that these arguments are not relevant to the issue of whether Battles is entitled to a belated appeal. State v. Trowell, 739 So.2d 77 (Fla.1999). Instead, they may be presented by the state in its answer brief in the direct appeal which will ensue.

The petition is granted and George Battles is afforded a belated appeal from the order rendered May 11, 2004, in Duval County Circuit Court case number 2000 CF 2665. See Byrd v. State, 916 So.2d 926 (Fla. 1st DCA 2005); Turner v. State, 745 So.2d 535 (Fla. 1st DCA 1999). Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, VAN NORTWICK, and BROWNING, JJ., concur.