Santiago v. State

Third District Court of Appeal
State of Florida

Opinion filed November 1, 2017.
Not final until disposition of timely filed motion for rehearing.

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No. 3D17-2044
Lower Tribunal No. 06-37562
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Christopher Santiago,
Petitioner,

vs.

The State of Florida,
Respondent.

A Case of Original Jurisdiction – Petition for Belated Appeal

Christopher Santiago, in proper person.

Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellee.

Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

PER CURIAM.
On March 4, 2015, after petitioner Christopher Santiago’s probation was

revoked, the trial court sentenced him to fifteen years imprisonment. Santiago

filed a petition with this court, pursuant to Florida Rule of Appellate Procedure

9.141(c), seeking a belated appeal of this sentence.

In his petition, Santiago contends that he requested his trial counsel to file an

appeal of the sentence, and that, despite agreeing to the request, trial counsel failed

to do so. We ordered the state to respond to the petition, and in its response, the

state wrote that it spoke with trial counsel, who gave his version of the post-

sentence conversation with Santiago. When an appeal of the probation sentence

came up, trial counsel said, Santiago was told that he could appeal but trial counsel

(who was privately retained) would not handle it and Santiago would have to find

another attorney.

The state’s response raises a good faith basis to dispute Santiago’s assertion

that he requested his trial counsel to file an appeal on his behalf, and his trial

counsel agreed to do it. See Brownlee v. State, 223 So. 3d 1064, 1065 (Fla. 3d

DCA 2017) (finding the state “had raised a good faith basis to dispute” the

defendant’s belated appeal petition where the state’s response “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”); Parrish v. State,

201 So. 3d 145, 145-46 (Fla. 3d DCA 2016) (finding the state “raised a good faith

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basis to dispute” the defendant’s belated appeal petition where the state “appended

an e-mail to its Response . . . in which trial counsel disputes Parrish’s assertion that

counsel was requested to file a notice of appeal”). We, therefore, appoint the judge

presiding in criminal division ten of the Miami-Dade circuit court as a

commissioner to hold an evidentiary hearing and determine the limited, disputed

issues of fact upon which Santiago’s petition turns: whether Santiago instructed

his trial counsel to file a notice of appeal and trial counsel agreed to file one. See

Fla. R. App. P. 9.140 cmt. n. (1996 amend.) (“In the rare case where entitlement to

belated appeal depends on a determination of disputed facts, the appellate courts

may appoint a commissioner to make a report and recommendation.”). In order

to allow the division judge the opportunity to conduct an evidentiary hearing, make

the required determination, and transmit the report of such determination to this

court, the proceedings on Santiago’s petition shall be held in abeyance for sixty

days from the date of this order.

Commissioner appointed; petition held in abeyance.