Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3429 _____________________________ FRANCISCO J. BACA, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Belated Appeal—Original Jurisdiction. January 11, 2021 PER CURIAM. Petitioner sought a belated, direct appeal, which we have denied as untimely in a separate unpublished order. In reviewing that petition for belated appeal, we caught Petitioner in a lie. Whereas he alleged under oath in his petition that he had only recently learned that no appeal was filed, he had also alleged under oath in an earlier-filed postconviction motion that he had not filed any direct appeal. Here are the pertinent dates. Petitioner’s judgment and sentence became final on May 5, 2017. He filed his postconviction motion on May 15, 2018, asserting under oath that no direct appeal had been filed. He filed a petition for belated appeal on September 17, 2019, asserting that he did not know until September 18, 2018, that no direct appeal had been filed. This sworn statement in Petitioner’s recent petition for belated appeal is proven false by his earlier sworn statement in his postconviction motion. In addition to denying a belated appeal, we ordered Petitioner to show cause why he should not be sanctioned for including in his sworn petition false statements concerning the date he learned counsel had not filed an appeal on his behalf. We now write to address Petitioner’s response to this Court’s show cause order. We find that sanctions are appropriate under Jones v. State, 18 So. 3d 551 (Fla. 1st DCA 2008). I. Procedural Background. On September 17, 2019, Petitioner filed a sworn petition for a belated, direct appeal from his judgment and sentence, pronounced May 5, 2017. No appeal was filed, so Petitioner’s judgment and sentence became final 30 days later, on or about June 6, 2017. He had two years to file a petition for belated appeal. See Fla. R. App. P. 9.141(c)(5)(A). Although Petitioner filed the petition for belated appeal more than two years later, he attempted to avail himself of the four-year exception in Rule 9.141(c)(5)(A) by alleging he only learned on September 18, 2018, that no appeal had been filed by his counsel. However, because September 18, 2018, is within two years of Petitioner’s sentencing on May 5, 2017, Petitioner clearly knew that a direct appeal had not been filed within the two-year window under rule 9.141(c)(5)(A). Thus, Petitioner could have and should have filed his petition for belated appeal within the two- year window. See Fla. R. App. P. 9.141(c)(5)(A) (“A petition for belated appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner was unaware a notice of appeal had not been timely filed . . . , and could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated appeal be filed more than 4 years after the expiration of time for filing the notice of appeal.”) (emphasis added); Clark v. State, 881 So. 2d 40 2 (Fla. 1st DCA 2004) (denying petition for belated appeal as procedurally barred where court records revealed that petitioner knew or should have known within two-year window that a timely notice of appeal had not been filed). Accordingly, this Court denied his petition as untimely. However, at the time Petitioner filed his petition for a belated, direct appeal in this case, Petitioner also had a pending postconviction appeal in this Court, case number 1D19-2439 (which has since been affirmed and is final). In his postconviction appeal, he sought review of an order denying his sworn postconviction motion filed in the lower court on May 15, 2018. In his May 2018 motion, he stated under oath that “[t]he Defendant did not file a direct appeal with the DCA.” Because Petitioner’s sworn postconviction motion indicates that he knew as of May 2018—several months earlier than the September 2018 date alleged in his sworn petition for belated appeal—that no appeal had been filed, this Court ordered Petitioner to show cause why sanctions should not be imposed for providing a false statement to this Court. Petitioner responded by attempting to harmonize his sworn statements in his May 2018 postconviction motion with his petition for belated appeal. Petitioner asserts that he truthfully stated in his postconviction motion that “the Defendant did not file an appeal.” Petitioner seems to imply that he meant that he, in proper person, did not personally file an appeal, which is distinct from when he learned on September 15, 2018, that his counsel had not filed an appeal. Petitioner further argues that these pleadings were prepared for him by his “jailhouse lawyer” and that he could not understand what was really being asserted in these pleadings because he is uneducated, has a learning disability, and English is his second language. Thus, Petitioner asks this Court to recall its order denying his petition for belated appeal as untimely. II. Sanctions. First, we deny the affirmative relief Petitioner requested in his response. Even if Petitioner had not discovered until 3 September 15, 2018, that his counsel had not filed an appeal, he still knew within the two-year window permitted by rule 9.141(c) that no appeal had been filed. See Clark, 881 So. 2d at 40; cf. Snell v. State, 849 So. 2d 1139, 1140–41 (Fla. 1st DCA 2003) (accepting petitioner’s sworn allegations that he did not receive the final order for two years and the order did not advise him of his appellate rights). Yet Petitioner still waited another year, until September 2019, to file his petition, which was after the two-year window expired. Thus, we conclude the petition for belated appeal was properly denied as untimely, and we deny Petitioner’s request to recall our earlier order. Second, in light of Petitioner’s response, we find that sanctions are appropriate under Jones v. State, 18 So. 3d 551 (Fla. 1st DCA 2008). In Jones, we rejected an excuse nearly identical to the one Petitioner offers, and we imposed sanctions: Jones has responded to our order to show cause, asserting that he did not knowingly file a false claim with the court. He asserts that he was being “represented” by an inmate law clerk at his former institution, that he has no knowledge of the law, and that he only filed what the law clerk advised him to file. According to Jones, the law clerk prepared the petition and had him affix his signature, and he signed the petition in the good faith belief that the law clerk had followed court rules. He therefore suggests that the imposition of sanctions is inappropriate. Given that Jones personally swore that the information contained in his petition was true and correct and that the court’s reliance on that representation resulted in a substantial expenditure of the court’s resources, as well as those of the Attorney General, we reject petitioner’s attempt to absolve himself of responsibility for his actions. See Allen v. State, 746 So. 2d 1247 (Fla. 1st DCA 1999). Accordingly, we hereby find that petitioner either knowingly or recklessly brought false information before the court in this proceeding, and 4 in accordance with section 944.279(1), direct that a certified copy of this order be forwarded to petitioner’s institution for disciplinary procedures pursuant to the rules of the Department of Corrections. Id. at 553; see also Rivera v. State, 943 So. 2d 973, 974 (Fla. 5th DCA 2006) (imposing sanctions against petitioner for belated appeal in order “to protect the sanctity of the court proceedings,” where petitioner blamed prisoner assisting him for including false statements in petition; emphasizing that “[t]his court receives many petitions for belated appeal, yet the allegations petitioners have to make are very minimal. Petitioners should not be allowed to cavalierly lie to this court.”) (quoting Svoboda v. State, 932 So. 2d 545, 546 (Fla. 5th DCA 2006))). Likewise, we reject Petitioner’s attempt to absolve himself of responsibility by blaming his inmate law clerk. As in Jones, Petitioner personally swore to the truth of the facts contained in his petition for belated appeal. These facts are contradicted by those he personally swore to be true in his motion for postconviction relief in case number 1D19-2439. We deny Petitioner’s request to recall our earlier order denying the petition for belated, direct appeal as untimely filed under Florida Rule of Appellate Procedure 9.141(c). We also find that sanctions against Petitioner are appropriate because Petitioner either knowingly or recklessly brought false information before the Court in this proceeding. Accordingly, pursuant to section 944.279(1), Florida Statutes, we direct that a certified copy of this opinion be forwarded to Petitioner’s institution for disciplinary procedures pursuant to the rules of the Department of Corrections. SO ORDERED. OSTERHAUS and NORDBY, JJ., concur; KELSEY, J., concurs specially with opinion. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ KELSEY, J., concurring specially. The procedural posture of this case presents an opportunity to reconcile two of our opinions: Phelps v. State, 953 So. 2d 623 (Fla. 1st DCA 2007), and Ellis v. State, 975 So. 2d 1192 (Fla. 1st DCA 2008). To be clear, the problem here is not that Petitioner sought a belated appeal while his postconviction appeal was pending. As further explained below, it is permissible, and may be necessary, to petition for a belated, direct appeal while a postconviction appeal is pending—so long as the petition for belated appeal is not demonstrably untimely as this one was, or otherwise legally insufficient. The need for this clarification could arise from a misreading of the very short opinion in Phelps, which suggests that a petition for belated appeal was denied because Mr. Phelps already had a pending appeal from the denial of a postconviction order before this Court. Phelps, 953 So. 2d at 624. But in Ellis, this Court granted a petition for a belated, direct appeal after noting that the defendant had previously appealed orders denying postconviction motions. This Court reasoned that, notwithstanding his postconviction appeals, Mr. Ellis’s judgments and sentences had not yet been reviewed. Id. at 1193. Based on a review of this Court’s own records, our decision in Phelps is factually distinguishable from Ellis because Phelps concerned duplicative postconviction appeals. The petition for belated appeal in Phelps was denied because it sought a belated postconviction appeal from the same underlying order at issue in Mr. Phelps’s pending postconviction appeal in case number 1D06- 4387. In other words, the petition for belated appeal in Phelps was moot. Phelps and Ellis are factually distinguishable and, therefore, 6 not at odds as to whether a petition for a belated, direct appeal may be filed when a postconviction appeal is already pending. Further, the rules do not prohibit the filing of a petition for a belated, direct appeal when an appeal from a postconviction order is already pending. Once a criminal judgment and sentence becomes final, 1 a defendant is authorized under the Florida Rules of Criminal Procedure to file a postconviction motion, such as a rule 3.850 motion alleging ineffective assistance of trial counsel. Likewise, a defendant is authorized to file a collateral criminal petition under the Florida Rules of Appellate Procedure, such as a petition for belated appeal under rule 9.141(c). See Saucer v. State, 779 So. 2d 261, 262 (Fla. 2001) (holding that a petition for belated appeal is a “collateral criminal” proceeding). In fact, both rule 3.850 and rule 9.141(c) require that a motion or petition, respectively, must be filed within two years after the judgment and sentence becomes final. See Fla. R. Crim. P. 3.850(b); 2 Fla. R. App. P. 9.141(c)(5)(A). 1 The doctrine of decisional finality provides that there must be a ‘terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein.’” Fla. Power Corp. v. Garcia, 780 So. 2d 34, 44 (Fla. 2001) (quoting Austin Tupler Trucking, Inc. v. Hawkins, 377 So. 2d 679, 681 (Fla. 1979)). Generally, a criminal judgment and sentence becomes final at one of two times, depending on whether an appeal is taken. If an appeal is taken, assuming the judgment and sentence is affirmed, the judgment and sentence becomes final once the appellate mandate issues. See Breland v. State, 58 So. 3d 326, 327 (Fla. 1st DCA 2011) (“[T]he two-year period in [Rule 3.850] does not commence until both the conviction and the sentence become final, which occurs upon issuance of the mandate in the direct review proceedings.”). If no appeal is taken, the judgment and sentence becomes final within thirty days. See Jones v. State, 78 So. 3d 706, 709 (Fla. 1st DCA 2012). 2 See Haag v. State, 591 So. 2d 614, 616 (Fla. 1992) (“[W]e have noted that the two-year time limitation imposed by Rule 3.850 7 However, a defendant cannot raise a claim of trial court error in a postconviction motion or collateral criminal petition. See Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995) (“[I]ssues that could have been, but were not, raised on direct appeal are not cognizable through collateral attack.”). Rather, direct appeals, in which a defendant may directly attack the judgment and sentence, are quite distinct from collateral actions, wherein a defendant may only attack a judgment and sentence indirectly. See Parker v. State, 89 So. 3d 844, 858 (Fla. 2011) (“Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland [rule 3.850] claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct and—of necessity—have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal.” (quoting Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001))); Fox v. State, 104 So. 3d 371, 371–72 (Fla. 1st DCA 2012) (“As a general rule, claims asserting ineffective assistance of defense counsel are not cognizable on direct appeal ‘because the trial court never had the opportunity to consider the issue below, and the issue often involves collateral questions of fact that cannot be determined by the trial record,’ alone.” (quoting Loren v. State, 601 So. 2d 271, 272 (Fla. 1st DCA 1992)); see also Saucer, 779 So. 2d at 262–63 (“[W]hen a ‘civil’ writ petition is also referred to as ‘collateral criminal,’ the term actually refers to the underlying subject matter of the action, and the fact that the petition seeks serves to promote the fairness and finality required of our criminal justice system: ‘It serves to reduce piecemeal litigation and the assertion of stale claims while at the same time preserves the right to unlimited access to the courts where there is newly discovered evidence or where there have been fundamental constitutional changes in the law with retroactive application.’” (quoting Johnson v. State, 536 So. 2d 1009, 1011 (Fla. 1988), accord Art. I, § 21, Fla. Const. (right of access to courts))). 8 judicial relief from the judgment and sanctions imposed in the criminal prosecution.”). The reason for this distinction is alluded to in our unelaborated statement in Ellis, where we noted the petitioner’s judgment and sentence had not yet been reviewed. Underlying this statement in Ellis is the well-settled point of law that alleged harmful errors the trial judge committed during a criminal trial must be raised for review on direct appeal, if ever. See Johnson v. State, 53 So. 3d 1003, 1007 (Fla. 2010), as revised on denial of reh’g (Jan. 27, 2011) (“Although a defendant is not entitled to a completely error-free trial, he or she has a constitutional right to a fair trial free of harmful error. Thus, the role of the appellate courts [on direct appeal] is to ensure that criminal trials are free of harmful error, the presence of which would require reversal. The harmless error rule is ‘concerned with the due process right to a fair trial’ and ‘preserves the accused’s constitutional right to a fair trial by requiring the state to show beyond a reasonable doubt that the specific [errors] did not contribute to the verdict.’” (quoting State v. DiGuilio, 491 So. 2d 1129, 1135–36 (Fla. 1986))). In other words, in the case initiated by the State against Ellis, the judgment and sentence had not yet been reviewed for any errors that the trial court judge may have committed. See generally Saucer, 779 So. 2d at 262 (“[P]erhaps the only true criminal proceeding is the one the State initiates against a defendant charging her with committing a criminal act. Accordingly, when a person other than the State brings an action, it cannot be considered purely criminal, if for no other reason than that ordinarily only the State can initiate a criminal action. Such other proceedings may be considered either completely independent of a criminal action or ‘collateral’ to it.”) ((footnote omitted)). Because a direct appeal in a criminal case is the defendant’s only direct attack on the judgment and sentence imposed following trial, direct criminal appeals are afforded special protections not afforded to postconviction or collateral criminal proceedings. For example, under Florida law, a defendant has a constitutional right to appellate counsel for direct appeal. See Mann v. State, 937 So. 2d 722, 726–27 (Fla. 3d DCA 2006). Additionally, special 9 procedures apply to direct criminal appeals when appellate counsel cannot identify a meritorious issue to brief, under which the appellate court must undertake an independent review of the record. See In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991). 3 However, these procedures do not apply to postconviction appeals because there is no right to postconviction counsel. See Smith v. State, 956 So. 2d 494, 495 (Fla. 1st DCA 2007) (“[N]o Sixth Amendment right to counsel exists in appeals of orders denying post-conviction relief. . . . Accordingly, neither the court nor appellate counsel in postconviction matters is bound by the procedure set forth in Anders.” (citation omitted)). Direct criminal appeals also enjoy special significance and distinction from the more limited review that may be entertained through postconviction and collateral criminal proceedings. As a defendant’s single opportunity to attack any trial court errors directly, criminal convictions in Florida are deemed non-final until the appellate court issues its mandate on direct appeal. Thus, when a direct appeal is not timely filed and the conviction becomes final in thirty days, a defendant may petition for a belated, direct appeal on the grounds set forth in rule 9.140(c). Because postconviction and collateral criminal proceedings turn on the finality of the judgment and sentence, the rules do not prohibit a criminal defendant from petitioning for a belated appeal raising the limited grounds set forth in rule 9.141(c), even though the defendant has a pending postconviction appeal from an order denying a postconviction motion raising the limited grounds set forth in rule 3.850. In summary, Phelps concerned duplicative postconviction appeals and is not at odds with Ellis. Although a petition for belated appeal may be denied or barred for other reasons (such as being duplicative or untimely), there is no prohibition against filing a petition for a belated, direct appeal when an appeal from an order denying postconviction relief is already pending. In fact, the time for filing a petition for belated, direct appeal may 3 See also Anders v. California, 386 U.S. 738 (1967). 10 necessarily overlap with the time for filing a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, depending on the claims raised. In this case, because no direct appeal was filed from Petitioner’s judgment and sentence, his conviction became final on or about June 6, 2017. After that time, Petitioner was free to file a postconviction motion. Once Petitioner realized that his trial counsel had not filed a direct appeal in his case, he was also free to file a petition for belated, direct appeal under rule 9.141(c). Under the rules, he had to file each within two years after his judgment and sentence became final. See Fla. R. Crim. P. 3.850(b); Fla. R. App. P. 9.141(c)(5)(A). Accordingly, Petitioner was authorized to file a petition for belated, direct appeal notwithstanding his already pending postconviction appeal—but he failed to do so timely. _____________________________ Francisco J. Baca, pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent. 11