Itturaldes v. State

935 So. 2d 1283, 2006 Fla. App. LEXIS 14248, 2006 WL 2451305

Opinion

MONACO, J.

Juan Itturaldes filed a petition for writ of mandamus with this court seeking a belated appeal of his 1999 conviction and sentence and other relief. Mandamus is not the appropriate remedy for seeking a belated appeal, because the granting of that relief is not a ministerial duty. See Austin v. Crosby, 866 So.2d 742 (Fla. 5th DCA 2004). Thus, as required by rule 9.040(c), Florida Rules of Appellate Procedure, we consider his filing as a petition for belated appeal under rule 9.141(c), Florida Rules of Appellate Procedure, which is the proper remedy.

It appears that Mr. Itturaldes filed a pro se notice of appeal from this very same conviction and sentence in 1999. Because he failed to prosecute his appeal, however, it was dismissed. Moreover, Mr. Ittu-raldes has failed to point out any exception to the two-year time limit contained in rule 9.141(c)(4) under which he could seek a belated appeal. Accordingly, we deny the petition.

DENIED.

PALMER and EVANDER, JJ., concur.