Nieves v. State

737 So. 2d 587, 1999 Fla. App. LEXIS 8544, 1999 WL 420448

Opinion

THOMPSON, J.

Jack D. Nieves petitions this court for writ of habeas corpus, seeking a belated appeal. He asserts the trial court erred when it denied his motion to dismiss counsel. Shortly after the trial court denied the motion, Nieves entered a plea of nolo contendere to second' degree murder. He argues that the trial court and his trial counsel should have informed him that he could have appealed the trial court’s decision. He cites Florida Rules of Appellate Procedure 9.140(b)(2)(A) and 9.140(j) to support his argument.

To obtain a belated appeal under Rule 9.140(j), the petition must allege that petitioner requested counsel to proceed with an appeal and his counsel failed to honor his request. See Fla. R.App. P. 9.140(j)(2)(F); Nazworth v. State, 715 So.2d 1061 (Fla. 5th DCA 1998); Gilliam v. State, 611 So.2d 90 (Fla. 2d DCA 1992). We deny the petition because Nieves does not allege that he advised counsel to file an appeal after sentencing. However, it is without prejudice for Nieves to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 since he alleges four grounds of ineffective assistance of counsel.

DENIED without prejudice.

COBB and GOSHORN, JJ., concur.