Opinion
No. 92-1585.
July 8, 1992.
Appeal of order denying rule 3.850 motion from the Circuit Court for Broward County; Robert J. Fogan, Judge.
Jerry Butler, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for appellee.
Pro se appellant appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for consideration of the claim of ineffective counsel.
Appellant did not timely appeal his conviction and sentence. However, he filed a motion for post-conviction relief pursuant to rule 3.850, seeking a belated appeal due to alleged ineffective assistance of trial counsel. The motion alleged that appellant's trial counsel failed to file an appeal after appellant requested him to do so.
The trial court summarily denied the rule 3.850 motion on the basis that the appropriate remedy is a petition for writ of habeas corpus directed to the appellate court rather than a motion for post-conviction relief.
Appellee has indicated that it has no objection to the case being remanded to the trial court for a determination on appellant's ineffectiveness claim because the case law relied upon by the trial court in its order of denial was overruled by State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla. 1990). We agree such course is the appropriate one.
REVERSED AND REMANDED.
GLICKSTEIN, C.J., and DOWNEY and POLEN, JJ., concur.