XAVIAR WALKER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a defendant is not entitled to a belated appeal when the orders denying his motions to withdraw plea and modify sentence did not advise him of his appellate rights, as those rules do not require such advisement.
Xaviar Walker sought a belated appeal from orders denying his motion to withdraw plea and motion to modify sentence. He argued he was entitled to a be…
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PER CURIAM.
Xaviar Walker seeks a belated appeal from the circuit court’s orders denying his motion to withdraw plea and motion to modify sentence. Because neither order apprised Walker that he had only thirty days within which to file an appeal, Walker asserts he is entitled to a belated appeal.1 We deny the petition.
Walker’s motion to withdraw plea was filed pursuant to Florida Rule of Criminal Procedure 3.170(i), and his motion to modify sentence was filed pursuant to rule 3.800. Unlike rule 3.850, neither rule 3.170(i) nor rule 3.800 required the circuit court to advise Walker of his appellate rights. See, e.g., Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996)(holding that Simmons was not entitled to a belated appeal because an order denying a rule 3.800 motion does not have to advise a movant of his appellate rights). Accordingly, Walker is not entitled to a belated appeal.
DENIED.
KAHN, WEBSTER and POLSTON, JJ., concur. . Walker also contends that the letter which the circuit court treated as a motion to modify sentence should have been construed as a timely notice of appeal. The letter did not come close to complying with Florida Rules of Appellate Procedure 9.110(d) and 9.900(a), and therefore, we find no error in the circuit court’s treatment of the letter as a motion to modify sentence pursuant to rule 3.800.
Cases With Similar Vibessemantic neighbors from the corpus
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Harris v. State, 911 So. 2d 221 (Fla. 2d DCA 2005)…filed in 2000 and 2001.1 The State argues that the petition should be denied because the trial court properly denied the rule 3.800 motion and had no obligation to notify Mr. Harris of his right to appeal under the rule announced in Walker v. State, 863 So. 2d 355 (Fla. 1st DCA 2003), review dismissed 874 So. 2d 1194 (Fla.2004) (citing Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996), and holding neither Florida Rule of Criminal Procedure 3.170© nor rule 3.800(a) require the circuit court to advise a defe…
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Johnson v. State, 961 So. 2d 195 (Fla. 2007)…nform them of their appellate rights. As did the Second District, we answer these questions in the negative. Our ruling is consistent with the way the other district courts of appeal have ruled on this issue in the past. See, e.g., Walker v. State, 863 So. 2d 355 (Fla. 1st DCA 2003), review dismissed, 874 So. 2d 1194 (Fla.2004); Dunbar v. State, 688 So. 2d 993 (Fla. 5th DCA 1997); Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996). In each of these cases, the district courts found not only that the trial c…
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Washington v. State, 885 So. 2d 484 (Fla. 1st DCA 2004)…PER CURIAM. The petition for belated appeal is denied. See Walker v. State, 863 So. 2d 355 (Fla. 1st DCA 2003). KAHN, WEBSTER and POLSTON, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996)