Motion to File Belated Appeal In Florida
In Diaz v. State, 724 So. 2d 595, 596 (Fla. 2d DCA 1998), this court held that the Supreme Court of Florida's decision in Lambrix v. State, 698 So. 2d 247 (Fla. 1996), mandated that a defendant be afforded no relief in the form of a belated appeal based on counsel's failure to file a notice of appeal from the denial of a postconviction motion upon timely request by a defendant.
We accordingly are required, under Lambrix and Diaz, to deny X's motion for leave to file a belated appeal and to dismiss his appeal as having been untimely filed.
In reaching this result, we recognize that, in Steele v. Kehoe, 747 So. 2d 931, 1999 Fla, the supreme court held that when a convicted defendant alleges that his or her counsel agreed to file a postconviction motion on the defendant's behalf in the trial court, pursuant to Florida Rule of Criminal Procedure 3.850, but failed to do so in a timely manner, it is appropriate to order a hearing to determine whether a belated postconviction motion should be permitted.
If the defendant prevails at the hearing, he or she is entitled to belatedly file a rule 3.850 motion. See id.
The supreme court in Steele further modified rule 3.850(b) to expressly provide an exception to the two-year filing requirement for a rule 3.850 motion if the defendant alleges that he or she retained counsel to timely file such a motion and counsel, through neglect, failed to do so.
The supreme court stated in Steele v. Kehoe, 747 So. 2d 931, 1999 Fla, that there was a need to amend Florida Rule of Criminal Procedure 3.850(b) by adding a provision to allow a belated "appeal," we believe the reference to belated "appeal," as opposed to belated "motion," was unintended because clearly the rule amendment itself addresses only belated motions filed in the trial court.