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Howard v. State

District Court of Appeal of Florida, Fifth District
Aug 30, 2002
824 So. 2d 1015 (Fla. Dist. Ct. App. 2002)

Summary

noting that filing a rule 3.850 motion alleging ineffective assistance of counsel is the appropriate remedy for a defendant whose attorney advised him or her to plead guilty without reserving the right to appeal

Summary of this case from Pamphile v. State

Opinion

No. 5D02-2006.

August 30, 2002.

Appeal from the District Court of Appeal, Sharp, W., J.

Derrius Howard, Madison, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.


Howard has filed a petition with this court requesting a belated appeal. Howard pled guilty in the trial court to possession of a controlled substance and resisting arrest without violence. He was adjudicated guilty of both charges and sentenced. Howard argues in this petition that his trial counsel was ineffective because he was advised to plead guilty to both charges without reserving his right to appeal the trial court's denial of his motion to suppress evidence. We deny the petition without prejudice to Howard to seek an appropriate remedy, if available to him.

Howard fails to allege here that he requested his trial counsel to file an appeal and that counsel failed to honor his request. Whether his trial counsel was ineffective for failing to advise him that he should and could reserve his right to appeal the denial of the motion to suppress is not cognizable in this proceeding. Nieves v. State, 737 So.2d 587 (Fla. 5th DCA 1999). Howard's appropriate remedy is to file a rule 3.850 motion in the trial court alleging ineffective assistance of trial counsel. Accordingly, we deny this petition without prejudice to seek appropriate collateral relief.

Petition for Belated Appeal DENIED WITHOUT PREJUDICE.

THOMPSON, C.J., and HARRIS, J., concur.


Summaries of

Howard v. State

District Court of Appeal of Florida, Fifth District
Aug 30, 2002
824 So. 2d 1015 (Fla. Dist. Ct. App. 2002)

noting that filing a rule 3.850 motion alleging ineffective assistance of counsel is the appropriate remedy for a defendant whose attorney advised him or her to plead guilty without reserving the right to appeal

Summary of this case from Pamphile v. State

noting that filing a rule 3.850 motion alleging ineffective assistance of counsel is the appropriate remedy for a defendant whose attorney advised him or her to plead guilty without reserving the right to appeal

Summary of this case from Pamphile v. State

In Howard, a defendant filed a petition for belated appeal, arguing that his trial counsel was ineffective because counsel advised Howard to plead guilty to two charges without advising him that he could reserve his right to appeal the denial of the motion to suppress.

Summary of this case from Perez v. State
Case details for

Howard v. State

Case Details

Full title:Derrius HOWARD, Petitioner, v. STATE of Florida, Respondent

Court:District Court of Appeal of Florida, Fifth District

Date published: Aug 30, 2002

Citations

824 So. 2d 1015 (Fla. Dist. Ct. App. 2002)

Citing Cases

Perez v. State

Even if a defendant pleads guilty, he is entitled to an appeal if he timely asks counsel to file a notice of…

Pamphile v. State

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