final until disposition of timely filed motion for rehearing.
of Original Jurisdiction-Petition for Belated Appeal Lower
Tribunal No. 14-21972A.
Alvarez, in proper person.
Jo Bondi, Attorney General, and Nikole Hiciano, Assistant
Attorney General, for respondent.
LAGOA, SCALES, and LUCK, JJ.
Petitioner, Juan Alvarez ("Alvarez"), seeks a
belated petition pursuant to Florida Rule of Appellate
Procedure 9.141(c). Because the petition requires a
determination of a disputed fact, we appoint a commissioner
to hold an evidentiary hearing and determine the limited,
disputed issue of fact that remains. The petition shall be
held in abeyance for a period of sixty (60) day from the date
of this order.
February 1, 2017, the State filed a Notice of State's
Intention to Seek Enhanced Penalty Pursuant to F.S. 775.084,
stating that Alvarez qualified for an enhanced penalty as a
habitual felony offender, and a Notice of Defendant's
Qualifications as a Prison Releasee Reoffender and Required
Sentencing Term Pursuant to F.S. 775.082. On February 10,
2017, Alvarez pled guilty to robbery while armed with a
firearm or deadly weapon, and to resisting an officer without
violence, and on February 21, 2017, the trial court sentenced
Alvarez to five years in prison, followed by five years on
August 28, 2017, Alvarez filed a petition for writ of habeas
corpus with this Court seeking a belated
appeal. In his petition, Alvarez alleges that on
the day he entered his plea, he requested his counsel to file
a direct appeal regarding the plea proceedings.
Alvarez further asserts that his counsel informed him that no
appeal was available, that he could not appeal anything
regarding the plea proceedings, and that he absolutely waived
everything regarding an appeal, including his judgment and
sentence, when he entered the plea.
petition further asserts that "on or about June 2017,
" Alvarez asked a family friend to check the docket to
see if an appeal was filed in his case, and he subsequently
learned that an appeal had been not been filed.
proceeded to file the instant petition, and this Court
ordered the State to respond. In its Appendix to its
Response, the State included the following email from
Alvarez's former counsel, which disputes Alvarez's
assertion that he requested that counsel file an appeal:
I was never requested to file an appeal as I would have done
so and would have notified the Public Defender's Office.
In fact, Mr. Alvarez entered a plea of guilty after
instructing me to negotiate a plea agreement for one count of
first-degree armed robbery with a firearm, punishable by life
(PBL) for five years state prison, with a minimum mandatory
of three years, as habitual offender, followed by five years
of reporting probation, with early termination after two and
half years, consecutive to the federal sentence, with all
credit for time served of 867 days, with time served for the
1st degree misdemeanor of resisting an officer without
violence to this person. In fact, Mr. Alvarez as a prison
releassee re-offender (PURR), was facing life which was
waived as well as the 10 year minimum mandatory sentence
which he was facing for the use of the firearm in the
commission of the felony. In fact, after the plea, Mr.
Alvarez could have appealed an illegal sentence but I was
never requested to file any such appeal. Please let me know
what is the basis for the appeal as I was never requested to
appeal or discussed any grounds for the appeal with Mr.
Alvarez or anyone on his behalf.
State v. Trowell, 739 So.2d 77, 81 (Fla. 1999), the
Florida Supreme Court held that "[i]f the State raises a
good faith basis to dispute the defendant's claims
through affidavit or specific contrary allegations, the
appellate court may order an evidentiary hearing in the trial
court to determine the limited disputed issues of fact."
the State has raised a good faith basis to dispute
Alvarez's claim that he instructed his counsel to file an
appeal, we order the appointment of a special commissioner,
Judge Jose L. Fernandez (the trial court judge below), to
hold an evidentiary hearing to resolve this limited, factual
dispute. See, e.g., Brownlee v. State, ...