DINO MARCHETTI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant's motion for belated appeal is granted because the trial court failed to provide required notice of appeal rights and conducted an evidentiary hearing on post-conviction relief without the defendant or counsel present.
A defendant is entitled to a belated appeal and a new hearing on post-conviction relief when the trial court fails to provide notice of appeal rights and conducts an evidentiary hearing without the defendant or counsel present.
[1] A prisoner's presence at a hearing on a motion for post-conviction relief is within the trial court's discretion except when evidence is presented and the prisoner is not…
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Join FLexlaw to unlock all legal intelligenceThe trial court denied defendant Marchetti's motion for post-conviction relief on May 15, 1995, without providing notice of his right to appeal within…
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PER CURIAM.
Defendant Dino Marchetti’s motion for belated appeal is granted and the order under review reversed. The state concedes that the defendant is entitled to a belated appeal of the trial court’s order of May 15, 1995, which denied the defendant’s motion for post-conviction relief. The order did not give the defendant the required notice that he had a right to appeal that had to be exercised within thirty days. Fla.R.Crim.P. 3.850(g); State ex rel. Shevin v. District Court of Appeal, Third District, 316 So. 2d 50 (Fla.1975); Nava v. State, 652 So. 2d 1264 (Fla. 4th DCA 1995).
Further, a prisoner’s presence at a hearing on a motion for post-conviction relief is within the discretion of the trial court “except when evidence is presented and the prisoner is not represented by counsel.” Clark v. State, 491 So. 2d 545 (Fla.1986).
Here, the trial court conducted an evidentiary hearing on the defendant’s motion for post-conviction relief without the defendant or anyone representing him being present.
Thus, the defendant is entitled to a new hearing on his motion, in the presence of the defendant and/or his counsel.
Accordingly, the motion for belated appeal is granted. The order under review is reversed, and the cause remanded.
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Citator
Authorities Cited
- State of Fla. ex rel. Robert L. Shevin v. The Dist. Court OF Appeal of Fla., 316 So. 2d 50 (Fla. 1975)
- Clark v. State, 491 So. 2d 545 (Fla. 1986)
- Nava v. State, 652 So. 2d 1264 (Fla. 4th DCA 1995)