Joseph v. State

471 So. 2d 58, 10 Fla. L. Weekly 481, 1985 Fla. App. LEXIS 12529

Opinions

SHARP, Judge.

This is a petition for writ of habeas corpus for belated appellate review. We previously appointed a commissioner to determine whether Joseph was denied his right to appellate review due to ineffective assistance of counsel. Joseph v. State, 451 So.2d 886 (Fla. 5th DCA 1984).

We hold that Joseph is entitled to a belated appeal despite the contrary finding by the commissioner. At the hearing, Joseph’s counsel admitted that he had taken upon himself the responsibility for deciding whether to appeal and what other post-trial remedies to pursue. In our view, this was (with the understanding and concurrence of his client) tantamount to Joseph’s having timely requested an appeal.

When counsel later filed an appeal, it was filed untimely because he was unaware that a motion to reduce sentence, Fla.R.Crim.P. 3.800, did not toll the time for filing an appeal. Under these circumstances, appellant is entitled to a belated appeal. State v. Meyer, 430 So.2d 440 (Fla.1983).

BELATED APPEAL GRANTED.

DAUKSCH, J., concurs. COWART, J., dissents with opinion.