Faircloth v. State , 661 So. 2d 1292 ( 1995 )

661 So. 2d 1292 (1995)

Michael T. FAIRCLOTH, Appellant,
v.
STATE of Florida, Appellee.

No. 95-1644.

District Court of Appeal of Florida, Fourth District.

November 1, 1995.

Michael T. Faircloth, Indiantown, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Aubin Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

This is an appeal of an order denying appellant's rule 3.850 motion without evidentiary hearing, but with attachment of record excerpts, albeit not the determinative ones.

Appellant was convicted on a plea of guilty to one count resisting arrest with violence and one count petty theft. No direct appeal was taken from his conviction and sentence, although appellant alleges that he requested that his trial counsel file a notice of appeal.

Failure to timely seek appeal is ineffective assistance of trial counsel as a matter of law. State v. Meyer, 430 So. 2d 440, 443 (Fla. 1983). The issue is properly raised in a rule 3.850 motion. Stephenson v. State, 655 So. 2d 86 (Fla. 1995).

The trial court denied relief on the ground that the issue that appellant wished to raise in his appeal was without merit. That is not a proper ground for denial of relief. See Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993). It erred in conducting an inquiry into the merits of the proposed appeal, instead of determining the truth of appellant's allegation that he requested that his counsel file a notice of appeal and that counsel either neglected or refused to do so. We reverse and remand for that determination or for attachment of record excerpts which conclusively disprove appellant's claim that he asked his counsel to file a notice of appeal.

GLICKSTEIN, DELL and FARMER, JJ., concur.