Brownlee v. State , 223 So. 3d 1064 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed May 10, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-176
Lower Tribunal Nos. 09-10800A
& 09-10802
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Cedric Brownlee,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction — Petition for Belated Appeal.
Cedric Brownlee, in proper person.
Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for respondent.
Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
SCALES, J.
In May of 2015, Petitioner Cedric Brownlee entered a guilty plea to the
following charges: (1) second degree murder, (2) robbery with a firearm, and (3)
carrying a concealed weapon by a convicted felon. The trial court sentenced
Brownlee to thirty-five years in prison, followed by five years of probation.
Brownlee filed a petition with this Court, pursuant to rule 9.141(c) of the
Florida Rules of Appellate Procedure, seeking a belated appeal. In his petition,
Brownlee asserts that he requested his defense counsel to appeal the trial court’s
denial of his motion to suppress evidence, which had preceded his guilty plea.
Brownlee asserts that he made this request of defense counsel both before and after
the guilty plea, and that his guilty plea was premised upon Brownlee preserving his
right to appeal the suppression issue. Such appeal did not occur.
We ordered the State to respond to the instant petition. In its Response, the
State argues that Brownlee is not entitled to a belated appeal because the trial
court’s denial of the motion to suppress did not trigger a dispositive, appealable
issue. Further, the State informed this Court that it contacted Brownlee’s defense
counsel who recalled that he advised Brownlee about his appellate rights in light of
his plea bargain. Accordingly, the State has raised a good faith basis to dispute
Brownlee’s assertion that his defense counsel failed to file an appeal on his behalf.
Brownlee’s entitlement to a belated appeal depends upon a determination of this
disputed fact.
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Therefore, we appoint a commissioner, Judge Ellen Venzer (the trial judge
below), to hold an evidentiary hearing and determine the limited, disputed issue of
fact upon which Brownlee’s petition turns: whether Brownlee instructed his
defense counsel to file a notice of appeal. See State v. Trowell, 739 So. 2d 77 (Fla.
1999).
In order to allow Judge Venzer the opportunity to conduct an evidentiary
hearing, and transmit a report of such determination to this Court, the proceedings
on the instant petition shall be held in abeyance for a period of sixty days from the
date of this order.
Commissioner appointed; petition held in abeyance.
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