Howard v. State

824 So. 2d 1015, 2002 Fla. App. LEXIS 12523, 2002 WL 1990874

Opinion

SHARP, W., J.

Howard has filed a petition with this court requesting a belated appeal. Howard pled guilty in the trial court to possession of a controlled substance¹ and resisting arrest without violence.² He was adjudicated guilty of both charges and sentenced. Howard argues in this petition that his trial counsel was ineffective because he was advised to plead guilty to both charges without reserving his right to appeal the trial court’s denial of his motion to suppress evidence. We deny the petition without prejudice to Howard to seek an appropriate remedy, if available to him.

Howard fails to allege here that he requested his trial counsel to file an appeal and that counsel failed to honor his request. Whether his trial counsel was ineffective for failing to advise him that he should and could reserve his right to appeal the denial of the motion to suppress is not cognizable in this proceeding. Nieves v. State, 737 So.2d 587 (Fla. 5th DCA 1999). Howard’s appropriate remedy is to file a rule 3.850 motion in the trial court alleging ineffective assistance of trial counsel. Accordingly, we deny this petition without prejudice to seek appropriate collateral relief.

Petition for Belated Appeal DENIED WITHOUT PREJUDICE.

THOMPSON, C.J., and HARRIS, J., concur.

1 . § 893.13(6)(a), Fla. Stat.

2 . § 843.02, Fla. Stat.