Kelly v. State

ON MOTION FOR REHEARING

SHARP, W., J.

Robert Kelly has filed a motion for rehearing regarding this court’s denial of his petition for a belated appeal. We denied his petition for a belated appeal, filed by the public defender, which sought to review the trial court’s denial of his collateral attack on his criminal convictions and sentences for various crimes we had affirmed on appeal.¹ The basis for our denial was the fact that he relied on the public defender to file the notice of appeal, and it was not clear the public defender represented him in this matter. In collateral attacks on criminal convictions pursuant to 8.800 and 3.850 motions, indigent defendants are not entitled to representation by the public defender, as of right. See Elam v. State, 689 So.2d 1232 (Fla. 5th DCA 1997).

However in this motion for rehearing, Kelly points out that the public defender corresponded with him and offered to file a notice of appeal to this court, in this proceeding. The public defender has admitted fault in not properly calendaring the time the notice was due. Under these circumstances, we agree Kelly is entitled to a belated appeal.

Accordingly, we withdraw our prior opinion and grant Kelly’s motion for a belated appeal in this cause. If the public defender is going to represent Kelly in this matter, he or she shall forthwith file a notice of appearance.

Rehearing GRANTED; Petition for Belated Appeal GRANTED.

MONACO and PALMER, JJ., concur.

1 . See Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001).