Nixon v. State

921 So. 2d 819, 2006 WL 504060

• Court: District Court of Appeal of Florida
• Decided: March 3, 2006
• Docket: 5D05-3766
• Status: Published

Opinion

921 So.2d 819 (2006)

Donald NIXON, Petitioner,
v.
STATE of Florida, Respondent.

No. 5D05-3766.

District Court of Appeal of Florida, Fifth District.

March 3, 2006.

Donald Nixon, Lake City, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.

PALMER, J.

Donald Nixon filed a petition seeking a belated appeal, alleging under oath that he had requested his trial counsel to pursue a direct appeal but no appeal was filed. The State contacted trial counsel, who stated that Nixon did not ask him to file an appeal. Since there were "disputed facts", this court appointed a commissioner to hold a hearing and resolve the facts.

According to the commissioner's report and recommendation, Nixon testified at the hearing that he never requested that his counsel file a notice of appeal on his behalf. Accordingly, the commissioner recommended that the instant petition for belated appeal be denied.

Based upon the commissioner's recommendation, we deny Nixon's petition for belated appeal. In light of the assertion made by Nixon in his petition, under penalty of perjury, that he had requested his trial counsel to pursue an appeal, we direct that a certified copy of this opinion be forwarded to the appropriate institution, pursuant to section 944.279(1) of the Florida Statutes (2004), which subjects a prisoner to disciplinary procedures if he knowingly or with reckless disregard for the truth brings false information or evidence before the court. See Miller v. State, 917 So.2d 261 (Fla. 5th DCA 2005).

PETITION DENIED.

GRIFFIN and MONACO, JJ., concur.