Lane v. State

Full title: ERIC LANE, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, First District

Date published: Jul 1, 2002

819 So. 2d 1011 (Fla. Dist. Ct. App. 2002)

Opinion

No. 1D02-1220.

July 1, 2002.

Appeal from the Circuit Court, Okalossa County, Thomas T. Remington, J.

A. Wayne Williamson of Welton Williamson, Crestview, for appellant.

Robert A. Butterworth, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for appellee.

PER CURIAM.

Eric Lane moved for postconviction relief, asserting three claims. He argued that his plea was not voluntary, that he had received the ineffective assistance of trial counsel, and he requested a belated appeal from judgment and sentence on the theory that his trial counsel had failed to honor a timely request that a notice of appeal be filed. The trial court denied the first two claims but granted the third. Counsel was appointed and a "Notice of Belated Appeal" was filed, purporting to seek review of judgment and sentence as authorized by the trial court's order.

In response to a show cause order issued by this court, counsel explains the above scenario. We also recognize that Lane has taken a pro se appeal from the same order in this court's case number 1D02-1765.

Florida Rule of Appellate Procedure 9.141(c)(2) provides that "Petitions seeking belated appeal . . . shall be filed in the appellate court to which the appeal . . . should have been taken." Thus, it is this court, not the trial forum, which has jurisdiction to consider Lane's request for a belated appeal from judgment and sentence. Counsel for appellant relies on Brazile v. State, 618 So.2d 305 (Fla. 1st DCA 1993) for the trial court's authority in this matter, but Brazile was effectively overruled by the promulgation of Rule 9.140(j) (now renumbered as Rule 9.141(c)) effective January 1, 1997. Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 803-07 (Fla. 1996).

Accordingly, this appeal from judgment and sentence is dismissed for lack of jurisdiction. Lane may continue his challenge to the order denying postconviction relief in case number 1D02-1765, which remains active before this court.

DISMISSED.

ALLEN, C.J., BARFIELD and VAN NORTWICK, JJ., concur.