CARRENO v. STATE (2005)

The petitioner, Andres Carreno, filed a petition for writ of habeas corpus, seeking permission to file a belated appeal.   We deny the petition.

On April 3, 2003, the defendant, Carreno, pled guilty to second degree murder and two counts of aggravated child abuse.   A review of the defendant's plea colloquy reflects that he unequivocally stated that he understood that by pleading guilty he was waiving his right to appeal.   However, in his petition, Carreno alleges that after pleading guilty but prior to leaving the courtroom, he asked his attorney to file an appeal.   In response, the State claims it contacted Carreno's attorney who denied having any discussions with Carreno regarding the filing of a direct appeal.   In order to resolve this factual dispute, this court appointed the Honorable Jerald Bagley to act as a Commissioner, to conduct an evidentiary hearing, and to make a factual finding whether the defendant had timely requested his trial counsel to file an appeal.   See State v. Trowell, 739 So.2d 77, 81 (Fla.1999);  Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999).

After conducting an evidentiary hearing at which Carreno's first and second chair trial attorneys testified, as did Carreno himself, the Commissioner submitted his report wherein he concluded that there was no credible evidence presented to support the defendant's claim in this petition.

We have reviewed both the well-reasoned report of the Commissioner and the transcript of the proceedings and conclude, as did the Commissioner, that the defendant did not timely request that his trial attorney file an appeal after pleading guilty to the charges.   We thank the Commissioner for assisting the court, and deny the defendant's petition seeking a belated appeal.

Petition denied.

ROTHENBERG, Judge.