Marchetti v. State

District Court of Appeal of Florida

Marchetti v. State

669 So. 2d 1130, 1996 Fla. App. LEXIS 2653, 1996 WL 121004

CourtDistrict Court of Appeal of Florida

DecidedMarch 20, 1996

DocketNo. 96-193

StatusPublished

This text of 669 So. 2d 1130 (Marchetti v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marchetti v. State, 669 So. 2d 1130, 1996 Fla. App. LEXIS 2653, 1996 WL 121004 (Fla. Ct. App. 1996).

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Opinion

PER CURIAM.

Defendant Dino Marchetti’s motion for belated appeal is granted and the order under review reversed. The state concedes that the defendant is entitled to a belated appeal of the trial court’s order of May 15, 1995, which denied the defendant’s motion for post-conviction relief. The order did not give the defendant the required notice that he had a right to appeal that had to be exercised within thirty days. Fla.R.Crim.P. 3.850(g); State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975); Nava v. State, 652 So.2d 1264 (Fla. 4th DCA 1995). Further, a prisoner’s presence at a hearing on a motion for post-conviction relief is within the discretion of the trial court “except when evidence is presented and the prisoner is not represented by counsel.” Clark v. State, 491 So.2d 545 (Fla.1986). Here, the trial court conducted an evidentiary hearing on the defendant’s motion for post-conviction relief without the defendant or anyone representing him being present. Thus, the defendant is entitled to a new hearing on his motion, in the presence of the defendant and/or his counsel.

Accordingly, the motion for belated appeal is granted. The order under review is reversed, and the cause remanded.

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PER CURIAM.

Defendant Dino Marchetti’s motion for belated appeal is granted and the order under review reversed. The state concedes that the defendant is entitled to a belated appeal of the trial court’s order of May 15, 1995, which denied the defendant’s motion for post-conviction relief. The order did not give the defendant the required notice that he had a right to appeal that had to be exercised within thirty days. Fla.R.Crim.P. 3.850(g); State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975); Nava v. State, 652 So.2d 1264 (Fla. 4th DCA 1995). Further, a prisoner’s presence at a hearing on a motion for post-conviction relief is within the discretion of the trial court “except when evidence is presented and the prisoner is not represented by counsel.” Clark v. State, 491 So.2d 545 (Fla.1986). Here, the trial court conducted an evidentiary hearing on the defendant’s motion for post-conviction relief without the defendant or anyone representing him being present. Thus, the defendant is entitled to a new hearing on his motion, in the presence of the defendant and/or his counsel.

Accordingly, the motion for belated appeal is granted. The order under review is reversed, and the cause remanded.

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Bluebook (online)

669 So. 2d 1130, 1996 Fla. App. LEXIS 2653, 1996 WL 121004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchetti-v-state-fladistctapp-1996.

Opinion

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