Opinion
No. 94-1129.
June 7, 1994.
Appeal from the Circuit Court, Dade County, Leonard E. Glick, J.
Keith Maurice Jones, in pro. per.
Robert A. Butterworth, Atty. Gen., for appellee.
Before BARKDULL, JORGENSON and GERSTEN, JJ.
Appellant, Keith Maurice Jones (Jones), appeals the summary denial of his motion for postconviction relief. We reverse and remand.
Jones' motion sought leave to file a belated appeal because counsel failed to file an appeal despite Jones' timely request that he do so. The trial court summarily denied the motion, stating that it was in an inappropriate form and raises grounds that should have been raised on direct appeal.
Where a convicted criminal defendant requests that trial counsel take an appeal, failure to honor this request constitutes ineffective assistance of counsel. Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992); Short v. State, 596 So.2d 502 (Fla. 1st DCA 1992); Viqueira v. Roth, 591 So.2d 1147 (Fla. 3d DCA 1992); Turner v. State, 588 So.2d 1042 (Fla. 5th DCA 1991). Where undisputed facts reveal, as a matter of law, ineffective assistance of counsel in failing to file a timely notice of appeal, granting of a belated appeal is warranted. Turner, 588 So.2d at 1044.
Accordingly, we reverse the order denying relief, and remand for a determination whether Jones timely requested his trial counsel to file a notice of appeal. This determination requires the trial court to either conduct an evidentiary hearing or attach that portion of the record which demonstrates conclusively that Jones is not entitled to relief on this claim. Short, 596 So.2d at 503.
Reversed and remanded.