Can a Petition for a Belated Appeal Be Filed Based on the Alleged Ineffectiveness of the Counsel ?
In Diaz v. State, 724 So. 2d 595 (Fla. 2d DCA 1998), the Second District denied a petition for a belated appeal based on a claim that the petitioner's appointed counsel failed to file a notice of appeal, upon his timely request, from a trial court's denial of a 3.850 motion for postconviction relief.
The Diaz court held that this Court's language in Lambrix v. State, 698 So. 2d 247 (Fla. 1996) precluded a belated appeal from a postconviction motion based on the alleged ineffectiveness of postconviction counsel.
In so holding, the Second District indicated that prior to Lambrix it would have, consistent with the Fifth District's approach, granted relief upon a proper evidentiary showing. See Jones v. State, 642 So. 2d 121 (Fla. 5th DCA 1994) (reversing summary denial of 3.850 motion and remanding the case for an evidentiary hearing on petitioner's claim that postconviction counsel was ineffective for failing to file timely notice of appeal as requested and failing to advise petitioner of trial court's order denying his 3.850 motion);
McLeod v. State, 586 So. 2d 1351 (Fla. 5th DCA 1991) (remanding for evidentiary hearing to determine if petitioner, who claimed he was denied his right to appeal the denial of a 3.850 motion due to ineffectiveness of counsel, was entitled to a belated appeal).