Somchai Miller v. State of Florida

Summary

The Florida First District Court of Appeal dismissed Somchai Miller’s petition for a belated appeal as legally insufficient. The court held that Miller failed to allege that counsel misadvised him about the availability of appellate review and failed to specify when the relevant advice was given, but dismissed without prejudice to filing a new, legally sufficient petition.

Holdings

1. A petition seeking a belated appeal is legally insufficient unless it affirmatively alleges that the petitioner was misadvised as to the availability of appellate review, rather than merely alleging that counsel gave unreasonable advice about whether pursuing an appeal was advisable.
2. A petition for belated appeal must identify when the alleged misadvice occurred because advice to pursue another remedy would not establish prejudice to appellate rights if it was given after the time for appeal had already expired.

Questions Presented

1. Whether Miller's petition established a prima facie basis for a belated appeal when he alleged advice concerning the advisability of pursuing another postconviction remedy but did not allege misadvice concerning the availability of appellate review.
2. Whether the petition was legally sufficient when it failed to identify when counsel provided the allegedly erroneous advice, preventing a showing that the advice prejudiced Miller's appellate rights.

Disposition

dismissed