COOPER v. STATE (2002)

Dana L. Cooper seeks a belated appeal of his criminal conviction and sentence, alleging that his trial counsel advised him that no right to appeal existed and that the trial court never informed him differently.

In Lee v. State, 813 So.2d 275 (Fla. 5th DCA 2002), we held that when a petitioner alleged that he was not informed of his right to appeal, he was entitled to a hearing to determine if his allegation had merit and, if so, whether petitioner could have ascertained the right to appeal by exercise of reasonable diligence.  Fla. R.App. P. 9.141(c)(4)(A).   See also Coyle v. City of Ft. Lauderdale, 785 So.2d 1254 (Fla. 4th DCA 2001), rev. denied, 807 So.2d 653 (Fla.2002).

We appoint the trial judge as commissioner to make findings of fact to determine whether Cooper was advised that he had no right to appeal by trial counsel, whether the trial court advised Cooper of his right to appeal and whether Cooper's failure to request a belated appeal within two years of his conviction is excused pursuant to Florida Rule of Appellate Procedure 9.141(c)(4)(A).

REMANDED.

PETERSON, J.

PLEUS, and ORFINGER, R.B., JJ., concur.