Alvarez v. State , 254 So. 3d 510 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed March 28, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1963
Lower Tribunal No. 14-21972A
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Juan Alvarez,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction—Petition for Belated Appeal.
Juan Alvarez, in proper person.
Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for respondent.
Before LAGOA, SCALES, and LUCK, JJ.
LAGOA, J.
The Petitioner, Juan Alvarez (“Alvarez”), filed a petition seeking a belated
appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). For the
following reasons, we deny the petition.
On November 22, 2017, this Court appointed a commissioner to hold a
limited evidentiary hearing in order to determine whether Alvarez requested that
his counsel file an appeal from his plea and sentence. See Alvarez v. State, 230
So. 3d 625, 626 (Fla. 3d DCA 2017). On December 21, 2017, the commissioner
held an evidentiary hearing where both Alvarez and his former counsel, Alejandro
Zamora (“Zamora”), testified. The State proceeded to file the Commissioner’s
Report from that hearing with this Court.
The commissioner made several factual findings. Specifically, the
commissioner found that “Defendant’s attorney, Mr. Zamora, took detailed notes
at the time of the plea” and that “Zamora credibly testified the Defendant did not
ask him to file an appeal nor was it referenced in his detailed notes.” The
commissioner further found that Alvarez was “not credible” and that various
statements he made during the evidentiary hearing were “in fact refuted by the
prior record,” including the Order of Probation as well as the February 10, 2017,
plea and sentencing hearing transcript. Based on these findings, the commissioner
found that Alvarez did not request for his attorney to file a direct appeal. We
accept the commissioner’s recommendation and deny Alvarez’s petition for
belated appeal. See Svoboda v. State, 932 So. 2d 545, 547 (Fla. 5th DCA 2006).
Petition denied.
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