Bowers v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JUAN BOWERS, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ) ________________________________ ) Case No. 2D06-3001 Opinion filed October 18, 2006. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Richard A. Luce, Judge. DAVIS, Judge. Juan Bowers appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court's order summarily denying Bowers' rule 3.850 motion for postconviction relief without prejudice to Bowers filing a timely petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). In his motion, Bowers claims that his counsel was ineffective for failing to file his appeal despite a timely request to do so. The postconviction court summarily denied the motion, concluding that Bowers failed to allege that the request for appeal was timely. However, the postconviction court should have dismissed the motion for lack of jurisdiction. See MyIntyre v. State, 789 So. 2d 478 (Fla. 4th DCA 2001). Claims alleging ineffective assistance of trial counsel in failing to file a notice of appeal of the conviction are to be raised by petition for belated appeal, filed in the appellate court to which the appeal should have been taken. See MyIntyre, 789 So. 2d at 478; see also Fla. R. App. P. 9.141(c). Affirmed. NORTHCUTT and KELLY, JJ., Concur. -2-
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