final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
Petition for Belated Appeal-Original Jurisdiction.
A. Miller, Public Defender, and Julie M. Edwards, Assistant
Public Defender, Milton, for Petitioner.
Moody, Attorney General, Tallahassee; William Eddins, State
Attorney, and Patrick King, Assistant State Attorney, Milton,
Lamar Pelham, seeks a belated appeal of a judgment and
sentence rendered on February 4, 2019. Pelham's trial
counsel filed the petition, alleging that on March 15, 2019,
she received a letter from Pelham, dated February 14, 2019,
requesting an appeal be filed on his behalf. At the time the
letter was allegedly sent, Pelham was incarcerated at the
Santa Rosa County Jail.
there was not enough information in the petition to verify
whether Pelham timely sent the letter requesting an appeal be
filed, we issued an order, pursuant to Staley v.
State, 12 So.3d 778 (Fla. 1st DCA 2009), relinquishing
jurisdiction for appointment of a special master for the
purpose of issuing an order to show cause directed to the
State Attorney, conducting an evidentiary hearing if
warranted by the State's response, and issuing a written
report and recommendation concerning Pelham's entitlement
to a belated appeal.
special master was appointed and directed the State to show
cause why Pelham should not receive a belated appeal. The
State responded that it has no objection to the petition
being granted. Based on that position, the special master
found that the State Attorney "indicat[ed] that it had
no objection to the [petition] being granted." For that
reason the special master declined to hold an evidentiary
hearing and issued the report recommending the belated appeal
Court's appellate jurisdiction is invoked by a notice of
appeal within 30 days of rendition of the order to be
reviewed. Fla. R. App. P. 9.110(b). The failure to file a
timely appeal deprives this Court of jurisdiction. See
David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins.
Co., 972 So.2d 275, 278 (Fla. 2d DCA 2008) (quoting
First Nat'l Bank in Fort Myers v. Fla. Unemployment
Appeals Comm'n, 461 So.2d 208, 208 (Fla. 1st DCA
1984)) (noting that failure to file a timely notice of appeal
"constitutes an irremediable jurisdictional
only permit an appeal in a criminal case outside of time
permitted in rule 9.110(b) by granting a petition for belated
appeal pursuant to Florida Rule of Appellate Procedure
9.141(c). Rule 9.141(c)(4)(F) sets forth specific bases that
must be alleged to support a belated appeal.
why we employ the procedures set forth in Staley.
This Court relinquished jurisdiction to the trial court so it
could ascertain whether Pelham's petition satisfied the
requirements of rule 9.141(c) and if the State had any
objection to the facts alleged in the petition in order for
this Court to exercise its independent duty to determine if
it had jurisdiction. The State, however, cannot consent to
our jurisdiction over Pelham's appeal. See Wade v.
Fla. Dep't of Children & Families, 57 So.3d 869,
870 (Fla. 1st DCA 2011); see also Philip J.
Padovano, Fla. Appellate Practice, § 1.5 (2018
ed.) (noting that "[t]he appellate court has an
independent duty to determine the existence of jurisdiction
in every case and to dismiss a case that is not within its
jurisdiction"). For this reason, it is generally
insufficient for a special master to recommend a belated
appeal based simply on its finding the State does not object
to the petition.
a special master can look at the pertinent facts and conclude
that the lack of State's objection is an admission to the
facts as alleged in a defendant's petition. A special
master, however, should make this determination evident in
its report and recommendation. The State's response here
stated that "based upon the sworn representations of
opposing counsel in the Amended Petition for Belated Appeal,
the State does not object to the Court granting [Pelham] a
belated appeal." In this case, we construe the lack of
objection as an admission of the allegations in the petition.
therefore, grant Pelham's petition for belated appeal.
Pelham shall be allowed a belated appeal from the judgment
and sentence in Santa Rosa County Circuit Court case number
2017-CF-0171. A copy of this opinion shall be provided to the
clerk of the circuit court for treatment as the notice of
appeal. See Fla. R. App. P. 9.141(c)(6)(D). If