Michael Mario Delgado v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: February 5, 2025
• Docket: 3D2024-1925
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 5, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1925 Lower Tribunal No. F17-1698 ________________

Michael Mario Delgado, Petitioner,

vs.

State of Florida, Respondent.

A Case of Original Jurisdiction – Habeas Corpus.

Michael Mario Delgado, in proper person.

John Guard, Acting Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent.

Before SCALES, LOBREE and GOODEN, JJ.

GOODEN, J. Petitioner Michael Delgado seeks a belated appeal of the denial of his

Rule 3.850 motion. Because the petition is legally sufficient and the State's

response raises a good faith factual dispute, we appoint a commissioner to

resolve the factual dispute.

Florida Rule of Appellate Procedure 9.141(c) sets forth the

requirements for a petition seeking a belated appeal. “If a petitioner presents

a facially sufficient petition consistent with the rule’s requirements, . . . the

burden shifts to the State to specifically dispute the petitioner’s allegations.”

Hastings v. State, 348 So. 3d 1174, 1175 (Fla. 5th DCA 2022). “If the State

raises a good faith basis to dispute the petitioner’s claims through affidavit

or specific contrary allegations, the appellate court may order

an evidentiary hearing in the trial court to determine the limited disputed

issues of fact.” Id. Accord State v. Trowell, 739 So. 2d 77, 81 (Fla. 1999);

Brownlee v. State, 223 So. 3d 1064, 1065 (Fla. 3d DCA 2017); Alvarez v.

State, 230 So. 3d 625, 627 (Fla. 3d DCA 2017).

In his sworn petition, Delgado claims that he timely handed prison

officials the notice of appeal. Approximately seventy days later, he handed

prison officials a notice of inquiry concerning the status of his appeal. The

petition included stamped copies of these documents. However, Delgado

2 did not submit proof of the prison’s outgoing mail logs or a copy of the

envelopes.

In response, the State represents it contacted the prison. The prison

officials advised that they do not have any record that Delgado sent any legal

mail during the respective period. But officials explained that if Delgado used

his own postage, they would not have such a record. As a result of this

discrepancy, the State requests this Court appoint a commission to conduct

an evidentiary hearing on Delgado’s claims.

Because the State has raised a good faith basis to dispute Delgado's

claims, we appoint the Honorable Alberto Milian—the trial judge who

presided below—to hold an evidentiary hearing to resolve this limited, factual

dispute. To allow Judge Milian the opportunity to conduct the evidentiary

hearing and submit his determination to this Court, this petition shall be held

in abeyance for a period of sixty days. See Parrish v. State, 201 So. 3d 145,

146 (Fla. 3d DCA 2016).

Commissioner appointed; petition held in abeyance.