Cochenour v. State

608 So. 2d 563, 1992 Fla. App. LEXIS 11749, 1992 WL 342039

• Court: District Court of Appeal of Florida
• Decided: November 18, 1992
• Docket: No. 92-2280
• Status: Published

Opinion

PER CURIAM.

Walter R. Cochenour has appealed from an order of the trial court summarily denying his motion for post-conviction relief, pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.

Cochenour was convicted of escape and, on December 28, 1990, the trial court imposed an habitual felony offender sentence. On May 28, 1991, Cochenour filed the instant motion alleging 1) ineffective assistance of counsel, 2) failure to prepare a sentencing guidelines scoresheet, 3) failure to provide a hearing on the habitual felony offender classification, and 4) denial of the right to appeal, in that his counsel refused to do so despite a request.

We find, without discussion, that the trial court correctly denied Cochenour’s motion as to the first three grounds. With regard to the fourth, the allegation that a defendant made a timely request for an appeal which counsel failed to honor creates a colorable claim of ineffective assistance of counsel, requiring either an evi-dentiary hearing or attachment of those portions of the record negating the allegation. Jackson v. State, 599 So.2d 266, 267 (Fla. 1st DCA 1992).

We affirm the denial of the motion as to this allegation, in that Cochenour did not allege that his request for an appeal was timely. However, as to this allegation only, affirmance is without prejudice to the filing of a sworn motion alleging that the request for an appeal was timely made. The order is in all other respects affirmed on the merits.

JOANOS, C.J., WIGGINTON and KAHN, JJ., concur.