Daley v. State

710 So. 2d 757, 1998 Fla. App. LEXIS 5933, 23 Fla. L. Weekly Fed. D 1298

Opinion

PER CURIAM.

Donovan Daley appeals the order denying his post-conviction motion seeking a belated appeal. We affirm because the relief is available only through a petition for writ of habe-as corpus filed in this court. Fla. R.App. P. 9.140(j) (1997).

However, for the sake of judicial economy, we treat this case as if Daley had filed his request for a belated appeal in this court. Because the request was made more than five years after Daley’s conviction and sentence became final, relief is presumptively barred by laches. Wing v. State, 704 So.2d 1154 (Fla. 4th DCA 1998); McCray v. State, 699 So.2d 1366 (Fla.1997). Daley cannot overcome that presumption by filing a sworn statement that his trial attorney actively misled him about the status of the appeal, since he

alleged in his sworn post-conviction motion that his attorney truthfully advised him that no appeal had been filed. Accordingly, we summarily deny relief.

AFFIRMED.

GUNTHER, FARMER and TAYLOR, JJ., concur.